Legal Trends

5 Reasons Why Juries Are Awarding Billion-Dollar Verdicts

Emotion and trust play a big role in how a jury rules in personal injury and liability cases.
By: | June 11, 2018 • 5 min read

Described as being part of a “lottery mentality” trend,  jury awards are reaching into the tens of millions — and even billions — of dollars for personal injury and liability lawsuits.

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Just look at some of the payouts from recent verdicts:

$35 million was awarded to a quadriplegic man battling his insurance company after being hit by a drunk driver.

$1 billion was awarded in a record verdict by a 12-person Georgia-jury to a young rape victim.

$150 billion was awarded in damages to the family of a child who was horrifically burned.

These awards are “hollow victories” in that they will likely be lowered by a trial or appellate court. However, they set a tone for how trial-by-jury can go if a case progresses to that stage.

1. Jurors’ distrust in big corporations and their lawyers can lead to vengeful verdicts.

Kristin McMahon, chief claims officer, North American Specialty, Global Risk Solutions, Liberty Mutual Insurance

The very divisiveness of a big corporation-versus-the-individual case is driven by anger. There’s a perception rooted within the jury that a corporation has only one goal in mind: money.

“The majority of our jurors believe corporations are unethical and will do anything to maximize a profit. There’s a mistrust in the companies [the defense] works for, whether it’s a health care facility, an energy plant. Corporations are deemed part of the ‘privileged elite,’ ” said Kristin McMahon, chief claims officer, North American Specialty, Global Risk Solutions, Liberty Mutual Insurance.

But this distrust isn’t just for the defense and the corporations they represent; jurors’ skepticism runs deep for the plaintiff’s attorney, too. In fact, jurors are frequently doubling the award amount requested by the plaintiff’s attorney at trial to “be sure the injured are taken care of,” said McMahon.

“It’s more of a lottery mentality rooted in distrust of corporate America. How else do you explain jurors returning with awards of $50 million, when the plaintiff’s counsel only asked for an award of $25 million? Jurors are endorsing a political philosophy of ‘populism,’ supporting the rights and power of the people in their struggle against a privileged elite, which is how the defendants are often viewed.”

Social media, she added, plays into that distrust on both sides: “We live in a world of ‘fake news.’ That plays into distrust across the board.”

2. Attention spans are shorter, leading to jurors paying less attention to lengthy testimonies and complex explanations.

The average attention span of a healthy adult is anywhere from 10 to 20 minutes. That same adult’s reading level, on average, will be equal to that of a 7th or 8th grader.

This is not conducive to the current way cases are presented, with lengthy arguments and extensive medical presentations from the defense’s physicians and experts.

“Seasoned trial counsel can no longer rely on the same playbook, providing the jurors with days of expert technical testimony regarding the science supporting their defense,” McMahon said.

And young folks aren’t invested in the trial testimony  for the long-haul.

“I think we’re in a transition period. [The defense’s] strategy has to change to appeal to the younger millennial generation jury pool and employ videos, graphics and virtual reenactment of the accident scene as part of the defense.”

3. Social media changes how millennial jurors view the court system.

There are 82 million millennials in the U.S., noted McMahon.

“One Millennial Poll suggests that only 19 percent agree that most people can be trusted. That’s a low number.”

Younger jurors tend to distrust corporations more. And while there are no concrete studies to show why this might be, McMahon said it’s important to note that “people 30 and under grew up in a different world of technology and world view, with a profound mistrust of the government.”

“Only 19 percent [of millennials] agree that most people can be trusted. That’s a low number.” — Kristin McMahon, head of claims, North American specialty, global risk solutions, Liberty Mutual Insurance

They began their formative years right around the time of the 9/11 attacks. They were the first generation introduced to new technologies that connected them with the rest of the world instantly. Again, social media plays a role in how these jurors approach their decision making.

Media in general can aid in that mistrust for corporate entities. One lawyer observed that “having had smartphones and Google at their fingertips from a relatively early age, many [Millennials] actively keep up with social, economic and political issues.

“They know how to leverage all this information for a purpose; indeed, their passion and social media resourcefulness can turn a small movement into a considerable force.”

4. Emotional stories impact the way a jury thinks.

Imagine an adult being wheeled into a courtroom with a cast on their leg and a brace around their neck. Now imagine the same scenario, only a child is the one facing these hardships.

Who the plaintiff is can influence how a jury might rule. Likeable plaintiffs, ones who have a good family and are relatable, see positive results. Emotion plays an important part in how the jury responds.

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In one recent example, a baby was injured after swallowing a small battery. His parents called for paramedics, and when they arrived, they told the mother her baby would simply pass the object. Unfortunately, the battery corroded and destroyed the lining in the baby’s esophagus, resulting in multiple surgeries and a three-month stay at the hospital.

The jury awarded the family $475,000.

5. Jurors are asked to look at every case with a ‘What if it were me?’ attitude, influencing how they seek justice.

Juries are more inclined to side with someone who is like them, someone who is, in a way, the “little guy.” Any wrongdoing on the part of the defense is considered enough proof for a jury to award the plaintiff.

The RAND Corporation published a study, “Trends in Civil Jury Verdicts,” which looked at data from 15 different jurisdictions and compared the verdicts across their geographical location, populations, race, household income and growth.

It concluded that “jury verdicts influence the behavior of users of the civil justice system by helping to value future disputes and creating legal precedents … Juries decide cases totaling billions of dollars annually, and jury decisions set standards that influence social behavior.”

As more juries side with the plaintiff during personal injury suits, a precedent is set. Justice is served when an injured party wins out, even when the defense did the right thing.

McMahon gave a perfect example: cases of sepsis. Sepsis is a fast-moving infection that leads to organ failure. In some cases, health care providers can save the lives of advanced sepsis patients by administering high dose vasopressors to ensure heart and lung function remain intact.

“Unfortunately, saving major organs comes at a price as the blood flow may be restricted to one’s limbs, causing them to become gangrenous. Thus, many sepsis patients need to have one or more limbs amputated, which ultimately leads to lawsuits challenging timeliness and treatment of the sepsis,” she said.

“Even if the hospital has done everything right — the [plaintiff’s attorney] plays on the survival instincts of the jury and may attack a deviation in the standard of care that had no impact on the treatment of the particular patient by focusing on outcomes ‘if it were you, what would you want to happen.’ ” said McMahon. &

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

High Net Worth

High Net Worth Clients Live in CAT Zones. Here’s What Their Resiliency Plan Should Include

Having a resiliency plan and practicing it can make all the difference in a disaster.
By: | September 14, 2018 • 7 min read

Packed with state-of-the-art electronics, priceless collections and high-end furnishings, and situated in scenic, often remote locations, the dwellings of high net worth individuals and families pose particular challenges when it comes to disaster resiliency. But help is on the way.

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Armed with loss data, innovative new programs, technological advances, and a growing army of niche service-providers aimed at addressing an astonishingly diverse set of risks, insurers are increasingly determined to not just insure against their high net worth clients’ losses, but to prevent them.

Insurers have long been proactive in risk mitigation, but increasingly, after the recent surge in wildfire and storm losses, insureds are now, too.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy,” said Laura Sherman, founding partner at Baldwin Krystyn Sherman Partners.

And especially in the high net worth space, preventing that loss is vastly preferable to a payout, for insurers and insureds alike.

“If insurers can preserve even one house that’s 10 or 20 or 40 million dollars … whatever they have spent in a year is money well spent. Plus they’ve saved this important asset for the client,” said Bruce Gendelman, chairman and founder Bruce Gendelman Insurance Services.

High Net Worth Vulnerabilities

Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

As the number and size of luxury homes built in vulnerable areas has increased, so has the frequency and magnitude of extreme weather events, including hurricanes, harsh cold and winter storms, and wildfires.

“There is a growing desire to inhabit this riskier terrain,” said Jason Metzger, SVP Risk Management, PURE group of insurance companies. “In the western states alone, a little over a million homes are highly vulnerable to wildfires because of their proximity to forests that are fuller of fuel than they have been in years past.”

Such homes are often filled with expensive artwork and collections, from fine wine to rare books to couture to automobiles, each presenting unique challenges. The homes themselves present other vulnerabilities.

“Larger, more sophisticated homes are bristling with more technology than ever,” said Stephen Poux, SVP and head of Risk Management Services and Loss Prevention for AIG’s Private Client Group.

“A lightning strike can trash every electronic in the home.”

Niche Service Providers

A variety of niche service providers are stepping forward to help.

Secure facilities provide hurricane-proof, wildfire-proof off-site storage for artwork, antiques, and all manner of collectibles for seasonal or rotating storage, as well as ahead of impending disasters.

Other companies help manage such collections — a substantial challenge anytime, but especially during a crisis.

“Knowing where it is, is a huge part of mitigating the risk,” said Eric Kahan, founder of Collector Systems, a cloud-based collection management company that allows collectors to monitor their collections during loans to museums, transit between homes, or evacuation to secure storage.

“Before, insurance was considered the only step in risk management. Now, our client families realize it is one of the many imperative steps in an effective risk management strategy.” — Laura Sherman, founding partner, Baldwin Krystyn Sherman Partners

Insurers also employ specialists in-house. AIG employs four art curators who advise clients on how to protect and preserve their art collections.

Perhaps the best known and most striking example of this kind of direct insurer involvement are the fire teams insurers retain or employ to monitor fires and even spray retardant or water on threatened properties.

High-Level Service for High Net Worth

All high net worth carriers have programs that leverage expertise, loss data, and relationships with vendors to help clients avoid and recover from losses, employing the highest levels of customer service to accomplish this as unobtrusively as possible.

“What allows you to do your job best is when you develop that relationship with a client, where it’s the same people that are interacting with them on every front for their risk management,” said Steve Bitterman, chief risk services officer for Vault Insurance.

Site visits are an essential first step, allowing insurers to assess risks, make recommendations to reduce them, and establish plans in the event of a disaster.

“When you’re in a catastrophic situation, it’s high stress, time is of the essence, and people forget things,” said Sherman. “Having a written plan in place is paramount to success.”

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Another important component is knowing who will execute that plan in homes that are often unoccupied.

Domestic staff may lack the knowledge or authority to protect the homeowner’s assets, and during a disaster may be distracted dealing with threats to their own homes and families. Adequate planning includes ensuring that whoever is responsible has the training and authority to execute the plan.

Evaluating New Technology

Insurers use technologies like GPS and satellite imagery to determine which homes are directly threatened by storms or wildfires. They also assess and vet technologies that can be implemented by homeowners, from impact glass to alarm and monitoring systems, to more obscure but potentially more important options.

AIG’s Poux recommends two types of vents that mitigate important, and unexpected risks.

“There’s a fantastic technology called Smart Vent, which allows water to flow in and out of the foundation,” Poux said. “… The weight of water outside a foundation can push a foundation wall in. If you equalize that water inside and out at the same level, you negate that.”

Another wildfire risk — embers getting sucked into the attic — is, according to Poux, “typically the greatest cause of the destruction of homes.” But, he said, “Special ember-resisting venting, like Brandguard Vents, can remove that exposure altogether.”

Building Smart

Many disaster resiliency technologies can be applied at any time, but often the cost is fractional if implemented during initial construction. AIG’s Smart Build is a free program for new or remodeled homes that evolved out of AIG’s construction insurance programs.

Previously available only to homes valued at $5 million and up, Smart Build recently expanded to include homes of $1 million and up. Roughly 100 homes are enrolled, with an average value of $13 million.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work.” — Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“We know what goes wrong in high net worth homes,” said Poux, citing AIG’s decades of loss data.

“We’re incenting our client and by proxy their builder, their architects and their broker, to give us a seat at the design table. … That enables us to help tweak the architectural plans in ways that are very easy to do with a pencil, as opposed to after a home is built.”

Poux cites a remote ranch property in Texas.

Curt Goetsch, head of underwriting, Private Client Group, Ironshore

“The client was rebuilding a home but also installing new roads and grading and driveways. … The property was very far from the fire department and there wasn’t any available water on the property.”

Poux’s team was able to recommend underground water storage tanks, something that would have been prohibitively expensive after construction.

“But if the ground is open and you’ve got heavy equipment, it’s a relatively minor additional expense.”

Homes that graduate from the Smart Build program may be eligible for preferred pricing due to their added resilience, Poux said.

Recovery from Loss

A major component of disaster resiliency is still recovery from loss, and preparation is key to the prompt service expected by homeowners paying six- or seven-figure premiums.

Before Irma, PURE sent contact information for pre-assigned claim adjusters to insureds in the storm’s direct path.

“In the high net worth space, sometimes it takes longer potentially to recover, simply because there are limited contractors available to do specialty work,” said Curt Goetsch, head of underwriting for Ironshore’s Private Client Group.

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“If you’ve got custom construction or imported materials in your house, you’re not going to go down the street and just find somebody that can do that kind of work, or has those materials in stock.”

In the wake of disaster, even basic services can be scarce.

“Our claims and risk management departments have to work together in advance of the storm,” said Bitterman, “to have contractors and restoration companies and tarp and board services that are going to respond to our company’s clients, that will commit resources to us.”

And while local agents’ connections can be invaluable, Goetsch sees insurers taking more of that responsibility from the agent, to at least get the claim started.

“When there is a disaster, the agency’s staff may have to deal with personal losses,” Goetsch said. &

Jon McGoran is a novelist and magazine editor based outside of Philadelphia. He can be reached at [email protected]