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April 23, 2025

 

Overview of Recent Nuclear and Disproportionate Verdicts in Louisiana and Strategies to Protect and Mitigate Against these Verdicts

          The litigation landscape in Louisiana has become plagued by the exponential rise of nuclear verdicts – often described as jury awards that exceed $10 million or awards that are unreasonably high compared to the facts of the case and “shock the conscience”. For the insurance industry, this often means awards in excess of the insured’s available coverage, leaving the insured personally liable for the excess amount. In such a scenario, this excess exposure for the insureds creates tremendous financial implications.  

          According to a 2024 study conducted by Marathon Strategies, Louisiana verdicts in 2023 totaled $436,834,403 ($409,127,013 in state court and $27,707,390 in federal court).  Similarly, a 2024 study by the U.S. Chamber of Commerce ranked Louisiana eighth among state nuclear verdicts based on preliminary 2023 data.  Notably, the American Tort Reform Association’s 2024-2025 Judicial Hellhole Report ranked Louisiana tenth on its “Judicial Hellholes” list and cited a study by The Perryman Group that excessive judgments create a $965.22 “tort tax” per Louisiana resident.  

          Nuclear verdicts have wide-reaching impacts beyond just the insured. Plaintiffs have inflated and unreasonable expectations regarding settlements, even for typical injury claims. Insurance companies’ financial resources are constricted, they are forced to raise premiums and undertake new risk management practices, reconsider policy limits and insuring high-risk areas. Insurance adjusters are pressed to reconsider case values and reserves. Defense attorneys face unreasonable demands from plaintiff counsel and are forced to navigate the potential excess exposure their insured client faces. Finally, citizens not directly involved pay the price for increased litigation by struggling to afford insurance for themselves and/or their businesses due to increased rates and the need to carry excess and umbrella insurance.  

          To address this dangerous trend, we examine recent high-value awards throughout Louisiana and contextualize them against the Louisiana Supreme Court’s recent decisions and discuss the state of the law. Additionally, we discuss important defense strategies and their strengths in combatting nuclear awards. 

          To address this challenge from a regulatory and legislative perspective, I am currently working with the Louisiana Insurance Commissioner’s office on a series of tort reform bills. I will testify before legislative committees in support of this potential tort reform legislation.


I.     Overview of Recent Nuclear and Disproportionate Verdicts in Louisiana 
Examples of recent nuclear verdicts contributing to the trend above include:


•    $411 Million to Plaintiff for a Work-Place Scaffolding Accident (February 28, 2025) – Jose Valdivia v. Brock Services, LLC, et al. (19th JDC – East Baton Rouge Parish – Case No. C-731101)

          On February 28, 2025, A jury in East Baton Rouge Parish rendered the largest single-plaintiff award in the history of the state in the amount of $411,687,387.36 to Jose Valdivia after a 20 pound scaffolding bar was dropped on his head by a co-worker. Valdivia suffered injuries to his spinal cord as well as an alleged traumatic brain injury. In addition to arguing the severity of Valdivia’s injuries, Plaintiff’s case at trial was aimed at attacking Brock Services’ alleged failure to report the incident, covering it up, and bragging about having no recordable injuries while the case was in litigation. Moreover, Plaintiff stressed an intentional tort argument and pointed to to the co-worker as being dubbed “crazy Mike” and “walking hazard Mike” The jury deliberated for just over two (2) hours and returned a verdict for Valdivia broken down as follows:

o    $594,890.36 for past medical expenses
o    $14,000,000 for future medical and life care expenses
o    $92,497 for past lost wages
o    $2,500,000 for future lost wages
o    $10,000,000 for past physical pain and suffering
o    $50,000,000 for future physical pain and suffering
o    $10,000,000 for past mental pain, anguish, and emotional distress
o    $95,000,000 for future mental pain, anguish, and emotional distress
o    $10,000,000 Past loss of enjoyment of life
o    $154,000,000 Future loss of enjoyment of life
o    $7,500,000 Past disability
o    $43,000,000 Future disability
o    $15,000,000 Disfigurement

(Degan, Blanchard & Nash was retained post judgement by an excess insurer.)

 


•    $421 Million to Plaintiffs for Breach of Contract (September 20, 2024) - St. Charles Surgical Hospital, L.L.C. et al. v. Louisiana Health Service & Indemnity Company D/B/A Blue Cross/Blue Shield of Louisiana et al. (Orleans Parish Civil District Court Case No. 2017-01095) 

          A jury in Orleans Parish awarded $421,488,633 ($506,762,246 total damages less $85,273,613 paid by Blue Cross and Blue Shield of Louisiana – “Blue Cross”) to St. Charles Surgical Hospital and Center for Restorative Breast Surgery after finding that Blue Cross fraudulently underpaid claims for breast reconstruction procedures that had been authorized from 2015-2023. The jury deliberated for less than 2 hours. Blue Cross argued that because the hospital is not a member of its provider network, it was not obligated to pay and would be appealing.

 

•    $220 Million to Plaintiff for Automobile Accident (September 23, 2024) - Sherri Tramble v. Linetec Service, LLC, et al. (27th JDC Case No. 22-10939) 

          A jury in St. Landry Parish awarded $219,910,110, including $155,500,000 in general damages, in a truck/ambulance collision case for injuries sustained by a 36-year-old paramedic who was unrestrained in the back of the ambulance treating a patient. The ambulance was t-boned by a pick-up truck driven by an employee of LineTec Services. Injuries included:

o    multiple skull fractures affecting her eye socket, cheek, and nose
o    subdural brain bleed
o    C-7 spinal fracture
o    severe traumatic brain injury
o    permanent global deficits
Breakdown of award to the plaintiff
o    $1,053,176 for incurred medical expenses 
o    $61,433,984 for future medical care and her life care plan
o    $215,447 for lost wages
o    $1,707,503 for future wage losses
o    $20,000,000 for past suffering 
o    $25,000,000 for future suffering.
o    $20,000,000 for past anguish 
o    $25,000,000 for future anguish
o    $60,000,000 for past and future loss of enjoyment of life 
o    $5,000,000 for disability
o    $500,000 for scarring


 
•    $129 Million to Family for Death of 6-Year-Old (November 8, 2024) - Brent David Savoie v. Our Lady of Lourdes Roman Catholic Church (22nd Case No. 202316933) 

          A jury in St. Tammany Parish awarded $129,000,000 to a family following the death of a 6-year-old girl (Emma Savoie) who was killed in Our Lady of Lourdes Roman Catholic School’s parking lot while participating in its afterschool “Run Club”. The Run Club followed a dangerous route that lead young children to an afternoon carpool line without adequate adult supervision or crossing guards. At trial, the Plaintiffs focused their arguments not only on the tragic death of Emma Savoie, but that the School had never apologized for what happened. Breakdown of award to the family:

o    $50,000,000 to the decedent’s 10-year-old brother for mental anguish from viewing the event
o    $29,000,000 to the decedent for conscious pain and suffering  
o    $25,000,000 to the decedent’s mother for wrongful death
o    $25,000,000 to the decedent’s father for wrongful death
(Degan, Blanchard & Nash was involved on behalf of an insurer, which settled prior to trial.)

 

•    $91.7 Million to 9 Plaintiffs in Paper Mill Explosion (April 24, 2024) - Michael Johnson et al v. Packaging Corporation of America et al. (USDC-M.D.La. Case No. 3:18-cv-00613) 

          A jury in the United States District Court for the Middle District of Louisiana awarded $91,741.369.86 to nine survivors of a 2017 paper mill explosion in DeRidder, LA, as follows:

Michael Johnson ($9,266,672.07 total, including $8,000,000 in general damages)

o    $107,355.58 for past medical expenses
o    $474,516.49 for future medical expenses
o    $352,000 for past lost wages
o    $332,800 for future lost wages
o    $6,000,000 for past and future mental pain and sufferings, anguish, and emotional distress
o    $2,000,000 for past and future loss of enjoyment of life
 

Charles Cunningham ($19,911,177.41 total, including $14,000,000 in general damages)

o    $249,737.76 for past medical expenses
o    $1,151,439.65 for future medical expenses
o    $910,000 for past lost wages
o    $3,600,000 for future lost wages
o    $10,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $4,000,000 for past and future loss of enjoyment of life

Jerry Bailey ($13,749,237.6 total, including $10,000,000 in general damages)

o    $97,780.20 for past medical expenses
o    $301,457.40 for future medical expenses
o    $1,050,000 for past lost wages
o    $2,300,000 for future lost wages
o    $6,000,000 for past and future mental pain and suffering, anguish, and emotion distress
o    $4,000,000 for past and future loss of enjoyment of life

Eric Woodard ($10,423,313.54 total, including $9,000,000 in general damages)

o    $115,255.22  for past medical expenses
o    $453,058.32 for future medical expenses
o    $355,000 for past lost wages
o    $500,000 for future lost wages
o    $6,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $3,000,000 for past and future loss of enjoyment of life

Michael Darbonne ($9,673,274.98 total, including $8,000,000 in general damages)

o    $13,274.98 for past medical expenses
o    $560,000 for past lost wages
o    $1,100,000 for future lost wages
o    $6,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $2,000,000 for past and future loss of enjoyment of life
 

Michael McCullough ($17,723,216.87 total, including $14,000,000 in general damages)

o    $236,164.80 for past medical expenses
o    $1,237,052.07 for future medical expenses
o    $650,000 for past lost wages
o    $1,600,000 future lost wages
o    $10,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $4,000,000 for past and future loss of enjoyment of life

Demon Benjamin ($4,056,499.64 total, including $4,000,000 in general damages)

o    $56,499.64 for past medical expenses
o    $0.00 for past lost wages
o    $0.00 for future lost wages
o    $3,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $1,000,000 for past and future loss of enjoyment of life

Pamela Green ($6,907,977.75 total, including $6,000,000 in general damages)

o    $136,158.92 for past medical expenses
o    $389,818.83 for future medical expenses
o    $182,000 for past lost wages
o    $200,000 for future lost wages
o    $4,000,000 for past and future mental pain and suffering, anguish, and emotional distress
o    $2,000,000 for past and future loss of enjoyment of life

Christopher Herrington

o    $30,000 for past medical expenses

 

•    $43 Million to Plaintiff and Family for Automobile Accident (Verdict rendered on 11/06/23 and Judgment Signed 05/23/24) – Zachary Stewart and Caitlin Stewart, Individually and on Behalf of their Minor Children, Aaron Stewart and Liam Stewart Court v. The Travelers Indemnity Company of Connecticut, Service Steel Warehouse, L.P. and Burk Banks (18th JDC Case No. 81077) 

          According to the January 2, 2024 issue of The Louisiana Jury Verdict Reporter, a jury in Iberville Parish granted $43,320,229 total to the plaintiff and his family in a truck negligence case. 

Breakdown of $38,320,229 award to the plaintiff, including $31,000,000 in general damages: 

o    $789,847.81 for past medical expenses
o    $904,195 for future medical bills
o    $362,928 for lost wages
o    $5,263,258 for future lost wages 
o    $2,500,000 million for past pain and suffering
o    $8,000,000 for future pain and suffering
o    $2,500,000 for past mental anguish
o    $6,000,000 for future mental anguish
o    $1,000,000 for past loss of enjoyment of life
o    $1,000,000 for future loss of enjoyment of life
o    $2,000,000 for past disability
o    $6,000,000 for future disability
o    $2,000,000 for scarring/disfigurement

Breakdown of $5,000,000 award to the plaintiff’s family:

o    $4,000,000 for his wife’s consortium damages
o    $500,000 for his son’s consortium damages
o    $500,000 for his other son’s consortium damages

 

•    $18.4 Million to Plaintiff for Automobile Accident (January 16, 2025 ) – Robert Marionneaux, III v. Alexander Wilson, USAA Casualty Insurance Company, Louisiana Farm Bureau Casualty Insurance Company, Capital City Press, LLC D/B/A The Advocate, and Garrison Property and Casualty Insurance Company (18th JDC Case No. 80592) 

          A jury in Iberville Parish awarded $18,422,935.20, including $18,000,000 in general damages, to a law school plaintiff and son of an attorney who was rear-ended by a sportswriter for The Advocate, Wilson Alexander. The plaintiff alleged a low-back disc injury, seven ESI treatments, and recommendations for two lumbar repair surgeries. Breakdown of award to plaintiff:

o    $82,793.44 for past medical expenses
o    $340,141.76 for future medical expenses
o    $1,000,000 for past physical pain & suffering
o    $1,000,000 for future physical pain & suffering
o    $2,000,000 for past mental anguish
o    $1,000,000 for future mental anguish
o    $4,000,000 for past loss of enjoyment of life
o    $6,000,000 for future loss of enjoyment of life
o    $3,000,000 for disability
o    $0 for scarring and disfigurement

          The complexities in the case were that the plaintiff sued Alexander(who had a $50,000 USAA policy); his own UIM carrier, Farm Bureau, which had a $500,000 policy (that was paid) and a $2,000,000 excess; and The Advocate (which had a $16,000,000 policy).

 

•    $6.1 Million to Plaintiff 1 and $5.2 million to Plaintiff 2 for Automobile Accident (December 12, 2024) – Mason Tibbs and Jason Comeaux v. Hudson Insurance Co, et al. (15th JDC Case No. C-20222669) 

          A jury in Lafayette Parish awarded $6,126,284 total to plaintiff Tibbs, who was rear-ended by an employee of Acme Truck Line, Inc., and $5,270,400 total to plaintiff Comeaux, whose vehicle was subsequently struck by Tibbs’ vehicle.

Breakdown of $6,126,284 award to Tibbs, including $5,500,000 in general damages:

$73,063 for past medical expenses
$443,221 for future medical expenses
$30,000 for past lost wages
$80,000 for loss of future wages/earning capacity
$750,000 for past physical pain and suffering
$1,000,000 for future physical pain and suffering
$750,000 for past mental pain and suffering
$1,000,000 for future mental pain and suffering
$1,000,000 for loss of enjoyment of life
$1,000,000 for permanent impairment/disability

Breakdown of $5,270,400 award to Comeaux, including $4,750,000 in general damages:

$214,400 for past medical expenses
$256,000 for future medical expenses
$20,000 for past lost wages
$30,000 for loss of future wages/earning capacity
$750,000 for past physical pain and suffering
$1,000,000 for future physical pain and suffering
$750,000 past mental pain and suffering
$750,000 future mental pain and suffering
$500,000 loss of enjoyment of life
$1,000,000 permanent impairment/disability

 

•    $4.8 Million to Plaintiff and Wife for Automobile Accident (January 17, 2025) – Willie Zepherin, et al. v. Clear Blue Insurance Co, et al. (15th JDC Case No. 2023-2075) 
A jury in Lafayette Parish awarded $4,858,813.35 total to a plaintiff and his wife. The plaintiff was struck by a Red State Trucking LLC employee who ran a red light. Reportedly, the plaintiff had a two level cervical fusion, but was already disabled before the incident. 
Breakdown of $4,508,813.35 award to plaintiff, including $3,550,000 in general damages:

o    $700,000 for past physical pain and suffering 
o    $350,000 for future physical pain and suffering
o    $500,000 for past mental anguish and grief
o    $750,000 for future mental anguish and grief
o    $500,000 for past loss of enjoyment of life
o    $500,000 for future loss of enjoyment of life
o    $250,000 for permanent impairment or disability
o    $358,813.35 for past medical expenses
o    $600,000 for future medical expenses 
The total included a $350,000 loss of consortium award to the plaintiff’s wife.

 


•    $3.4 Million to Plaintiff for Automobile Accident (September 19, 2024) - Shamika Rue v. Ean Holdings, LLC D/B/A Enterprise Rent-A-Truck et al. (Orleans Parish Civil District Court Case No. 2019-03654) 


          A jury in Orleans Parish awarded $3,405,525.64, including $2,775,000 in general damages, to a plaintiff who was involved in a minor side-swipe accident when a box truck hit her vehicle. She did not complain of any injury at the accident scene and sustained a C5-C6 disc herniation that required a two-level fusion surgery. The award breakdown included:


o    $199,871 for past medical expenses
o    $430,654.64 for future medical expenses
o    $1,250,000 for present, past and future physical pain and suffering
o    $1,250,000 for present, past and future mental anguish and distress
o    $200,000 for loss of enjoyment of life
o    $75,000 for scarring/disfigurement

 

•    $1.9 Million to Plaintiff for Automobile Accident (May 8, 2024) – Tony Boutte v. ACE American Insurance Company, United Rental Company, and Chandwick Savoy (15th JDC Case No. C-20221210) 

          A jury in Lafayette Parish awarded $1,960,308.99, including $825,000 in general damages, in an automobile/forklift accident case involving an employee of United Rentals who failed to yield. The plaintiff alleged neck and back injuries, and there were just recommendations for continued cervical and lumbar injections, as well as for a lumbar fusion surgery. The award breakdown included:

o    $300,000 for past, present and future physical pain and suffering
o    $175,000 for past, present and future mental anguish and suffering
o    $43,825.59 for past medical expenses
o    $1,091,483.40 for future medical expenses
o    $350,000 loss of enjoyment of life

 

•    $1.5 Million to Plaintiff for Automobile Accident (October 4, 2024) - Jada Rende v. New York Marine and General Insurance Company, et al. (19th JDC Case No. 712258) 

          A jury in East Baton Rouge Parish awarded $1,512,000, including $850,000 in general damages, for a rear-end collision where the plaintiff treated for chronic back pain. Breakdown of award to the plaintiff:


o    $162,000 for past medical expenses
o    $500,000 for future medical expenses
o    $400,000 for past physical pain & suffering
o    $150,000 for future physical pain & suffering
o    $100,000 for past mental anguish
o    $100,000 for future mental anguish 
o    $50,000 for past loss of enjoyment of life 
o    $50,000 for future loss of enjoyment of life 

 


II.     Reductions and Reversals of Nuclear and Disproportionate Awards in Louisiana


          Louisiana’s tort environment saw improvement with cases that reversed excessive damage awards. For example, on September 28, 2023, the United States District Court for the Western District of Louisiana in Warner v. Talos ERT LLC  held that the jury’s general damages award of $20,000,000 to the minor son of an offshore worker who suffered fatal injuries (consisting of $10,000,000 for loss love, affection, and companionship; $5,000,000 for past mental anguish; and $5,000,000 for future mental anguish) was unsubstantiated. The case was reportedly exacerbated by defense discovery issues related to the production of documents that were revealed at trial that substantially upset the Federal District Court Judge. The court eventually adjusted the award based on an analogous published decision and also based on inflation. After allocation of fault, the final award was $4,360,708.59. It also held that the general damages award of $6,600,000 to the spouse (consisting of $4,000,000.00 for loss of love, affection, and companionship; $1,500,000.00 for past mental anguish; and $1,100,000.00 for future mental anguish) was excessive and reduced it to a final award of $5,104,226.22. The total damages awarded were $9,464,934.81.

          Similarly, on October 20, 2023, the Louisiana Supreme Court in Henry Pete v. Boland Marine and Manufacturing Company, LLC, et al. held that the Orleans Parish jury abused its discretion with regard to the $9,800,000 general damages award for a longshoreman’s mesothelioma from asbestos exposure (consisting of $2,000,000 for past and future physical pain and suffering; $2,300,000 for past and future mental pain and suffering; $3,000,000 for past and future physical disability; and $2,500,000 for past and future loss of enjoyment of life).  The Court held that lower courts must consider past general damage awards for similar injuries to determine whether a jury abused its discretion in its damages award. It found “that the record evidence of Mr. Pete's injuries is not so dissimilar to these other cases to warrant an award so greatly exceeding the range of these cases” and reduced the award to $5,000,000 as the highest reasonable general damage award within the jury’s discretion. With past medical expenses of $551,020.70, the final judgment totaled $5,551,020.70.


          The Louisiana Supreme Court seemingly continued its efforts to curtail excessive awards on June 28, 2024 in Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, et al. (Barber I), when it reduced awards from a 2021 East Baton Rouge Parish jury  to Frank Cushenberry, a commercial truck driver who suffered injuries in an automobile accident requiring numerous corrective surgeries, and his family. Citing its Pete directive, the Louisiana Supreme Court reduced the plaintiff’s general damage award from $10,750,000 to $5,000,000, the wife’s consortium award from $2,500,000 to $400,000; and the two children’s consortium award from $1,500,000 to $100,000 each as “the highest amounts that could be reasonably awarded.”  

          However, at the December 19, 2024 rehearing (Barber II), the Louisiana Supreme Court reversed its prior reduction – restoring Cushenberry’s $10,750,000 general damage award and amending the wife’s loss of consortium to $1,000,000 and children’s loss of consortium to $500,000 each.  Providing a “revised abuse of discretion analysis under Pete,” the Court clarified that:


“. . . . Pete concisely summarized the required two-step analysis for appellate review of a damage award:

(i)    Determining whether abuse of discretion occurred by examining the particular facts and circumstances of the case under review while including a ‘consideration of prior awards in similar cases,’ and 
(ii)    If abuse of discretion is found, ‘the court is to then also consider those prior awards to determine ‘the highest or lowest point which is reasonably within that discretion.”

          The Court held that the jury did not abuse its discretion in the $10,750,000 general damages award to Cushenberry, who sustained severe injuries, including a traumatic brain injury. The Court further stated that it did not adequately account for the voluminous and unrebutted trial record demonstrating the detrimental effects of the injuries. After a thorough review of the record and prior jury awards, the Court found that the jury’s award does not “shock the conscience” and was not an abuse of discretion.

          On February 14, 2025, the Louisiana Supreme Court denied the application for rehearing in Barber.  Thus, the effect of Barber II is that in evaluating whether a jury abused its discretion, appellate courts are to consider facts specific to each case in conjunction with a review of prior jury awards. Although the Louisiana Supreme Court created a standard for review in Pete for handling nuclear verdicts, the Court drastically changed it in favor of maintaining the verdict in its subsequent handling in Barber. In essence, the Court’s ruling has opened the door for appellate courts to maintain inflated jury verdicts. What is particularly unusual about this case is that after deciding Barber I, the Louisiana Supreme Court on its own invitation instituted the Barker II review.

 

III. Strategies to Protect and Mitigate Against Nuclear and Disproportionate Verdicts
    

Litigation Defense Strategies


          More than ever, defense attorneys must be proactive to mitigate against unreasonably high jury verdicts. First and foremost, the “where” matters. Our firm has studied jury verdict trends across all of Louisiana’s 64 parishes and 3 federal district courts and categorized them from extremely unfavorable to the defense, to the most defense-friendly. Because the “where” matters, from the outset, Defense counsel need to consider the potential to pursue other venues and jurisdictions where possible to move cases out of “judicial hellholes” in Louisiana. As the recent verdicts above and verdict history suggests, cases pending in federal court, as opposed to state court, generally result in more favorable jury verdict awards. Thus, removing cases early, or when the factual scenario presents itself, need to be at the forefront of defense practice. 
Every defense case needs to develop a theme early on to amplify that theme throughout every aspect of the case, including depositions, written discovery, experts, and motion practice. The most common defense themes are “common sense” or “reasonableness”. However, other, more contentious themes, such as “malingering” or “career-plaintiff” can and should be taken when the scenario presents itself. With that being said, Defense lawyers must be careful to avoid inflaming and angering the jury. Whether the theme be reasonableness or a more stringent one, aggressive and targeted discovery needs to take place to not only learn more about the other side’s theory of the case and the facts, but also to weave that information into the defense theory of the case. 


          Conservative and reliable defense experts need to retained early on to develop defense theories and refute every plaintiff expert. However, an expert need not only be conservative and reliable, but also likeable to the average person, especially when presenting complex information to a member of the public. Thus, experts should meet with the defense attorney’s in preparation of depositions or trial to help translate technical terms and concepts to a rational basic level. Creating the perception that they are more than just a hired-gun will be key in evaluating who to believe.  


          Often times in personal injury cases, alleged injuries, liberal physicians, and plaintiff themes take on a life of their own as the case moves along and plaintiffs continue to treat with healthcare providers at the suggestion of their counsel or other treating physicians. For these reasons, early surveillance to attack aggressive treatment is an important defense strategy and can be invaluable evidence. Outside of surveillance, background and social media investigations are key. Social media platforms such as Facebook offer a wealth of knowledge that can reveal the plaintiff’s activity level, tagged locations, social circles, and perspectives on religion, politics, and other issues. Additionally, research of family and friend Facebook pages can reveal photos and videos that the plaintiff may not realize is out in the public domain. Social media research is a powerful tool where we can quietly, yet ethically, collect comprehensive data about the plaintiff that can be used to initiate surveillance, propound specific discovery, challenge injuries or surgical recommendations, and leverage negotiations. Seeing the plaintiff unfiltered online or during a normal day without the phrasing or guidance of their counsel may provide information that is not otherwise available in discovery responses and pleadings. We can then use that collective knowledge to present our version of the plaintiff to the jury – subtly or otherwise –in a manner that is advantageous to our defense to minimize recovery. Thus, aggressive surveillance and social media investigation of plaintiffs should be done at the outset of litigation to leverage against future aggressive medical treatment and the retention of life-care plan experts, which often support excessive damage awards.  


          One of the most important aspects of defending against excessive verdicts is witness preparation – fact and expert. Early and often is the key so as to avoid damaging testimony and assist in lowering potential exposure. Each witness which a defense lawyer has some form of control over need be prepared with multiple sessions. The witnesses must be educated, in some form, about the theory of the case. A crucial aspect of witness preparation is cross-examining your own witness during preparation and a discussion of how they might respond if confronted with similar questioning.  

          Trial preparation, strategies, and tactics are key in combatting excessive verdicts. Mock trials, focus groups, and jury consultants are a great way to get into the mind of those who might be sitting on a jury and to refine the defense theory and message of the case before a trial begins. It also allows attorneys to test visual aids and presentations and gather feedback on what is missing or what is desired from a jury. Jury consultants can provide invaluable information into the background of prospective jurors to aid in voir dire. Jury selection is an art, but practical and tested strategies should still be employed. When selecting a jury, lawyers should focus on key issues relevant to the case and use open-ended questions to reveal potential biases. 
 

Other Strategies


          To fully address the nuclear and disproportionate verdict trend, we must understand the factors that drive jurors to award what they consider to be “economic justice” or the attempt to punish a defendant for the outcome of their negligence, even in cases where punitive damages are not recoverable. According to the International Association of Defense Counsel, factors that give rise to nuclear verdicts include the reptile trial strategy (where jurors feel threatened, are triggered by survival instincts, and direct their anger against the defendant); normalization of high verdicts due to 24/7 news and social media exposure; online misinformation; millennial perspectives regarding social consciousness and economic wealth; and elevated mistrust of American institutions and corporations.  
We need to explore ways to minimize the anger against corporations and to combat the notion that they prioritize profits over people. Corporate witnesses need to be prepped to appear more relatable, empathetic, and less condescending to the average juror. Whether that may come from dressing modestly at trial to being mindful of their demeanor and interactions with others in the courtroom, the behavior of corporate witnesses can confirm or change the jurors’ preconceived notions. To help minimize juror anger, a favorable corporate image must be maintained. Company profiles and social media pages should not be plastered with meaningless photo opportunities or empty rhetoric. The ability of a company to be perceived as honest and genuine can help prevent a juror from going rogue. 

          The “profits over people” concern against corporations can be tempered with better risk management practices. Companies need to be educated on what could be perceived as greed over safety (for example, keeping adverse event reports or unfavorable inspection reports internal). Companies need to understand the importance of proper documentation (for example, dating every document, documenting all incidents, including key personnel on relevant communications, and having a calendaring system to timely track issues of concern). To minimize the perception of corporate mistrust, companies should be advised on the consistent application of document retention and preservation policies (including the production of all corporate documents to their counsel, regardless of whether they are perceived as helpful or damaging). An unfavorable document that is ignored may be interpreted as a threat to safety and, thus, deserving of economic punishment. 
 

          In Louisiana, other factors contributing to nuclear or disproportionate verdicts include the volume of plaintiff attorney advertisements encouraging plaintiffs to get what they “deserve” and to make companies “pay” for their wrongdoings. We can combat the high awards in Louisiana by supporting legislation that limits the scope of advertisements for legal services. As mentioned earlier, we are actively working with the Louisiana Commissioner of Insurance to revise and adopt legislation that will directly affect both bad faith on behalf of insurance companies and institute tort reform for more defense-friendly legislation. 
 

          We must be mindful of the ramifications of the federal indictments in “Operation Sideswipe” (staged truck accident schemes that took place in Louisiana) and redirect public mistrust away from defendants and toward injured plaintiffs who want money. Moreover, the public can be educated about the dangers of large verdicts through blogs or informational seminars sponsored by insurance companies and law firms like ours. 
In summary, the nuclear and disproportionate verdict trend sets unreasonably high standards for evaluating the value of cases. Targeted litigation strategies, heightened awareness of human behavior, and activism outside of the courtroom are crucial steps to moving the meter in Louisiana’s civil justice system more toward the fair middle.  

 

Sidney W. Degan, III

Managing Partner 
E-Mail: 
sdegan@degan.com

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