2024 Report Confirms Nuclear Verdict Trends in Product Liability Cases
Data shows that “nuclear,” “thermonuclear,” and “mega nuclear” verdicts are becoming a greater risk for product liability defendants with each passing year. The growing potential for such a verdict makes it more difficult to resolve claims fairly by disincentivizing defendants who might otherwise be interested in trying their product liability case given its merits and by encouraging disproportionally high settlements. Here, we review data compiled by the U.S. Chamber of Commerce Institute for Legal Reform (“ILR”) concerning the rise of nuclear verdicts over the past decade in product liability cases, including an updated trends report ILR published just this year.
A “nuclear verdict” is generally thought to be one that is unexpectedly high and shockingly so. In terms of a monetary value, legal experts have defined “nuclear” verdicts as those exceeding $10 million, “thermonuclear” as those far exceeding $10 million, and “mega nuclear” as verdicts exceeding $100 million. Although evaluating compensation for personal injury or wrongful death is complex, verdicts surpassing tens of millions of dollars, and particularly those in the hundreds of millions or even billions of dollars, are often outside the realm of what can reasonably be called “compensatory.”
Nuclear verdicts are most common in the context of product liability, automobile accident, medical malpractice, and other professional liability claims. Such verdicts sow incalculable additive risk into our jury trials, decreasing defendants’ appetites to try meritorious cases and increasing appetites to agree to exploitative nuclear settlements. Given these and other damaging consequences, ILR has taken a close look at nuclear verdict trends, causes, and solutions: first, ILR’s September 2022 report analyzed cases between January 2010 and December 2019, and now, as of May 2024, an updated report ILR report includes data from January 2013 through December 2022.
In ILR’s 2022 study, the authors considered 1,376 verdicts surpassing $10 million in state and federal courts between 2010 and 2019. The results showed that, among these, the median verdict rose from $19.3 million in 2010 to $24.6 million in 2019, a 27.5% increase. Product liability cases had the second-highest median reported nuclear verdict between 2010 and 2019 ($23 million), surpassed only by intentional tort cases ($29 million). For product liability cases, the median reported nuclear verdict shift over the 10-year period between 2010 and 2019 was particularly steep: up 53.2% from $23 million in 2010 to $35.1 million in 2019. The study also determined that the risk of a “mega nuclear verdict” was greatest in the product liability area.
Although verdicts exceeding $1 billion were primarily comprised of punitive damage awards, the authors noted that three-quarters of reported nuclear verdicts they examined did not include a punitive damage award. When punitive damages were not in play, plaintiffs’ attorneys were able to argue for jackpot non-economic damages awards by seeking, for example, highly subjective pain and suffering damages.
State courts produced the vast majority of nuclear verdicts: nine out of every ten reported nuclear verdicts were in state courts. A small handful of states were responsible for 63% of nuclear verdicts during the 10-year period: California, Florida, New York, Texas, Pennsylvania, and Illinois.
In ILR’s 2024 study, the authors examined 1,288 nuclear verdicts between January 2013 and December 2022. The findings confirmed the results of the 2022 study: product liability cases had a $25 million median for their nuclear verdicts, just behind intentional tort cases at $28.6 million. The median nuclear verdict in product liability cases peaked at $36 million in 2022, the last year of data studied, showing a 50% rise over the prior ten years The authors noted that multiple nuclear verdicts were identified in talcum powder product, herbicide, earplug, asbestos, and tobacco cases.
Tactics inside and outside of the courtroom are primary drivers of the observed increase in product liability nuclear verdicts. Inside the courtroom, inciting juror anger can be a more potent tool than defense efforts to evoke juror sympathy, and can lead to exorbitant verdicts. Plaintiffs’ lawyers drum up award requests untethered to their case’s economics with the “reptile theory,” instilling fear and anger in jurors by demonizing the defendant and preying on feelings of corporate distrust and vulnerability; these can lead jurors to lash out at the defendant with an artificially high damages award.
Outside the courtroom, the plaintiffs’ bar has had success normalizing nuclear verdicts through television and social media advertising. With highly visible and proliferated advertising of nuclear verdicts, jurors have become desensitized to what used to be thought of as unreasonable damages requests. Believing such verdicts are awarded with regularity, and without the same visibility into defense wins, low-damages verdicts, and appellate outcomes slashing nuclear sums, jurors are more willing to listen when plaintiffs’ lawyers present a nuclear damages request in the courtroom.
Civil justice reform can reduce the likelihood of inflated damages awards by promoting fair and predictable evidence management and damages request guardrails. Until then, product liability defendants must combat the predictably unpredictable, but ever-increasing, threat of nuclear verdicts. Jury research and thoughtful case workup can help a product liability defendant understand the potential drivers of juror anger in their case and how best to defuse it with evidence developed during discovery and presented in the courtroom.