Blog | March 27, 2023

Shock Verdicts: Defense Strategies to Combat Excessive Verdicts and Settlements

Stratton Horres and Karen Bashor of Wilson Elser recently presented a webinar entitled “Aftershocks:  How Shock Verdicts are Resulting in Outrageous Settlements.”  Verdicts and settlements are at unprecedented amounts.  Shock verdicts, those at or greater than $10 million or those not rationally related to actual damages, result in “aftershocks” of enormous settlements.  What is creating this shock verdict environment, and what tools can defense counsel use to combat the emboldened plaintiffs’ counsel?

Potential Causes of Shock Verdicts

The current climate of political polarization, social inflation, anti-corporate bias, and post-COVID sentiment/angst, tension and anger is contributing to these shock verdicts.  Plaintiff counsel recognizes the cost of litigation is at an all-time high, as are the business risks to defendants.  Plaintiff counsel often utilizes the Reptile Theory when presenting their case, relying on jurors’ “reptilian” region of the mind which is sensitive to danger.  A juror is presented with the idea that a defendant is dangerous and plaintiff counsel convinces a juror it is within their power to help mitigate this danger by awarding large damages to the plaintiff.

One example employing Reptile Theory discussed was a $150 million settlement of a two fatality death case in an 18-wheeler accident.  This lawsuit arose from an incident in May 2020 in which a car was stopped in the travel lane of a Texas highway.  Three adults exited the car and walked away, leaving two children in the car.  An 18-wheeler struck the car, which caught fire, and the children were killed.  The adults who exited the car were not criminally charged.  Plaintiff counsel focused on community safety, claiming the trucking company should have known it hired an incompetent driver, highways are dangerous, and truck drivers are fatigued and overworked.  The trucking company decided to pay more in a settlement rather than face the possibility of a shock verdict, even though evidence showed the truck was traveling below the speed limit and the investigating officers placed no fault on the company or its driver.  While this example is not related to the healthcare setting, it is clear how the Reptile tactic could be used by plaintiff counsel against a medical provider, hospital, or long-term care facility to trigger a perceived “lack of safety” or “danger” to patients.

Medical Record Organization
Medical Chronology
Early Risk Assessment
Early Case Valuation

Plaintiff Counsel Tactics 

Although many cases settle on appeal, plaintiff counsel uses the initial verdict for public relations, marketing, and intimidation purposes.  The ultimate settlement may be for far less than the verdict; however, that figure is often confidential, and the damage has been done with the publicized verdict amount.  Plaintiff counsel will start with extremely high settlement demands and exploit relationships between the carriers and insured.  They threaten the companies and carriers with ruined reputations and falling stock prices to exhort a settlement.  The lead plaintiff counsel is typically aggressive in utilizing the Reptile Theory, is an expert on the jury pool, and seeks favorable venues, judges, and mediators.

Defense Counsel Strategies

To combat plaintiff counsel’s effort to drive a wedge between the carriers and insured, the defense must ensure everyone is coordinated at the outset to strategize.  The webinar presenters suggest a “collaborative litigation” approach with plaintiff counsel to resolve cases as early as practicable and avoid the time and expenses of a long adversarial process.

One key to an early resolution is the assessment and evaluation of the claim by the defense.  In a case involving healthcare, the basis for this is a review of the medical records.  To combat the Reptile Theory, the defense introduces alternative causation concepts.  A valuable tool for understanding the entire timeline of a patient’s clinical course is a Medical Chronology.  The defense can focus the chronology on specific issues that may have contributed to the plaintiff’s alleged injury.  This topical chronology extracts the most useful data from the full medical chronology, putting the most relevant information to the defense strategy in a concise document.

Covid Challenge Webinar Excelas Medical Legal Solutions

Contact Excelas to learn more about our full range of services to assist defense counsel in combating these Shock Verdicts through early case assessment and review.

Post Tags: