The numbers are frightening. In recent years, juries have routinely rendered outsized verdicts, a trend attributable in part to social inflation, public sentiment toward corporate defendants, and sophisticated litigation tactics employed by the plaintiffs’ bar. Nuclear verdicts – generally perceived as those in excess of $10 million – are a regular occurrence. Research has shown a steady increase in the volume and amount of nuclear verdicts over the last decade, with a sharp spike following the court shutdowns of the early COVID-19 pandemic.
Why is this happening? One reason is that the public perceives corporate defendants as motivated by profit. A juror’s relationship with a corporate defendant, if at all, is usually transactional, or marked by disgust when comparing a corporate CEO’s stock options with their own salary. It is difficult for an ordinary juror to see the ordinary people that stand behind the corporate logo.
Moreover, the plaintiffs’ bar has successfully employed the “reptile theory,” casting corporate defendants as broader risks to the community. This relies upon jurors’ basic instincts of fear and survival, and results in punishment of the corporate defendant for perceived wrongdoing, to say nothing of compensating an injured victim.
The transportation industry is not immune to these effects, and recent jury verdicts against motor carriers in Pennsylvania are certainly consistent with the national trend. This has resulted in a general increase in the perceived value of all claims, regardless of potential liability or the extent and nature of alleged injuries. Exposure is up. Defense strategies must rise accordingly.
On the front end, before a claim arises, it is critical to demonstrate a culture of compliance within the company. Risk management strategies should be front and center. Well-documented training and compliance procedures, along with documentation showing that the procedures were followed, can play an enormous role in diminishing juror acrimony toward a corporate defendant.
By way of example, say Joe Q. Driver applies for a job with John Smith Trucking Company. John Smith Trucking is obligated by the Federal Motor Carrier Safety Administration to determine whether Mr. Driver is qualified to operate a motor vehicle in interstate commerce. John Smith pulls Mr. Driver’s motor vehicle records and confirms his prior employment. Mr. Driver provides to John Smith Trucking a copy of his commercial driver’s license, and a Department of Transportation medical certificate. Voila, the requirements of the Federal Motor Carrier Safety Administration have been met.
Additional records can go a long way toward demonstrating a company’s risk management protocols. These can take many forms, including a personnel file, with documentation showing that Mr. Driver underwent new driver orientation, online and in-class education, road testing, written testing, and enhanced drug screening before he was put on the road.
Of course, no risk management strategy is perfect. Accidents happen. On the back end, after an accident occurs, prompt retention of counsel experienced in the jurisdiction where the accident happened can avoid numerous headaches down the line. Counsel will be able to speak directly with the employee driver, and ensure that attorney-client privilege is maintained throughout the course of any investigation.
Further, prompt preservation of evidence is absolutely essential. GPS location data, dash cam video, and electronic data modules associated with the vehicles involved often provide the only reliable evidence necessary to reconstruct an accident. While commercial motor vehicles often have these data recorders built in, it is sometimes difficult to obtain this data as a result of damage from the accident, police involvement, or other factors.
The other vehicle may have similar tracking devices, or the driver of the other vehicle may have location tracking technology in use, such as usage-based insurance trackers, family tracking through a portable or mobile device, or built-in vehicle technology that tracks airbag deployment or acceleration events. Oftentimes, this data is subject to short retention periods. Experienced counsel will have knowledge of the available data sources, and the resources necessary to ensure that the data is collected and preserved.
This data is useful in reconstruction of the timeline of events leading to the accident, as well as the accident itself. A clear reconstruction can limit exposure where the accident was caused by the other party, or provide early knowledge of adverse liability and concomitant motivation to promptly resolve legitimate claims.
Even with legitimate claims, it may not be possible to resolve them prior to the inception of litigation. In the event a case cannot settle, due to a mismatch between the adverse parties’ perceived value, vigorous defense is necessary. Plaintiffs with limited injuries may obtain excessive or unnecessary treatment, known as “buildup,” to inflate the value of their claims. Additionally, plaintiffs with underlying issues, such as prior injuries or conflating medical conditions, can provide an unclear damages evaluation, even for experienced defense counsel.
In these types of cases, medical experts are critical to establishing a defense to damages. It may be further necessary to retain a biomechanical expert to opine as to the nature of the accident and causation of any alleged injuries. Sometimes, plaintiffs may have a legitimate injury caused by some other event that, through subterfuge, is not disclosed. Demonstration through the use of a biomechanical expert that the accident in question did not generate the forces necessary to cause an injury can deflate a plaintiff’s case in an instant.
None of these avenues to vigorous defense is cheap. One alternative is social media investigation. A “deep dive” of a plaintiff’s social media, and that of their family or close contacts, can reveal information that significantly undermines their claims.
Nevertheless, corporate defendants should be mindful of their litigation risks and invest accordingly. The cost of fully defending these claims is always far less than that of a nuclear verdict.
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