The Trucking Litigation Landscape: How Small Verdicts and Settlements Are Affecting Carriers and What We Can Do About It

William “Billy” Davis*

to headline-grabbing mega-verdicts.

Introduction

There is no shortage of literature in the trucking law world discussing the “reptile theory” and the rise of “nuclear verdicts.” Verdict amounts continue to increase to staggering levels in the tens and hundreds of millions of dollars as the plaintiff’s bar continues its coordinated attack on America’s motor carriers. But an issue that has not received much attention is the growth of small verdicts and settlements which plague the trucking industry due to sheer numerosity. As so-called nuclear verdicts become more common, the rising verdict tide raises all boats.

This paper draws upon research conducted by the American Transportation Research Institute (ATRI), the American Tort Reform Foundation (ATR), and the experience of the authors as professionals in the trucking industry to paint a picture of the impact of verdicts and settlements less than $1,000,000 on the trucking industry. While the motor carriers who pay such claims most certainly do not consider them to be “small,” such amounts are typically not reported in the news media or in industry communications because they are generally viewed as small settlements/verdicts when compared

These small verdicts and settlements are far more numerous than the megaverdicts that have grabbed the attention of the industry, and for that reason they present a significant risk to motor carriers—especially motor carriers operating a fleet of less than 1,000 power units. It is the proverbial “death by a thousand cuts” for some carriers.

The Factors Responsible for the Rise of Large Verdicts Are Also Increasing the Median Payments Made in Small Cases

Even if you are not a litigator, chances are high that you have heard of so-called “nuclear verdicts.” Although there is no strict definition for the term, it is generally accepted by legal practitioners that a nuclear verdict is one greater than $10,000,000 in a personal injury case. Data show that nuclear verdicts have been on the rise over the past ten years.

While there is some general agreement as to what may be driving that trend, the trends are difficult to analyze with certainty. The principal reason for this is that litigation data are difficult to obtain and standardize. For example, while the dollar amounts of verdicts are publicly available, there are many aspects of the underlying case which may not be easily ascertained from the public record. Not all verdict reports break down the verdict into its component parts (separating compensatory awards from punitive damages, for example). Also, while attorneys and judges may conduct some informal discussions with jurors following their verdict, there is no formal process for recording and reporting the key factors driving a particular jury’s decision process. Additionally, there are numerous steps during the litigation process which can significantly impact the verdict such as adverse jury instructions due to spoliation of evidence, evidence exclusions at the pretrial stage, etc.

Most jury verdict research compilations include a very brief statement of the facts of the case—typically focusing primarily on the extent of the injuries—and then concludes with the final verdict amount. Much detail is lost in such reporting. Finally, our judicial system is, by design, geographically constrained. Jurors are pulled from the community in which the court is located, and so there can be radical differences in jury demographics and attitudes from one part of the country to the next. All of these factors make it difficult to compare a jury verdicts from one case to the next, even when the factual basis and injuries in the lawsuit appear to be similar.

The analysis is even more complicated when it comes to settlement data. There is typically a great deal of secrecy around litigation and many settlements are confidential. Even public settlements rarely provide detailed information as to the factors which motivated the settlement beyond simply avoiding litigation.

Despite these challenges, several organizations have worked diligently to gather appropriate representative data sets of verdicts and settlements so that reliability statistical analysis can be performed to help the industry understand trends.

One such study was published in September of 2022 by the United States Chamber of Commerce Institute for Legal Reform. The paper is titled Nuclear Verdicts: Trends, Causes, and Solutions and it sets forth an analysis of 1,376 verdicts greater than $10M—nuclear verdicts—between 2010 and 2019.1 That study found that the median nuclear verdict increased 27.5% over the ten-year study period, and that approximately 66% of nuclear verdicts occurred in product liability, auto accident and medical liability cases.

Earlier, in June of 2020, the American Transportation Research Institute published a paper entitled Understanding the Impact of Nuclear Verdicts on the Trucking Industry 2 The ATRI data set involved 451 verdicts over $1,000,000 from 2006 to 2018. That study revealed that the average verdict size from 2010 to 2018 increased by 867% from $2.3M to $22.3M.

Both the US Chamber and ATRI reports suggest that the factors contributing to the rise in nuclear verdicts are:

1. Litigation strategies such as the “reptile theory,” which is an integrated approach to litigation emphasizing the violation of safety rules throughout the discovery process and trial, culminating in an effort to anger the jury and encourage it to award damages in order to protect public safety rather than compensate the plaintiff.

2. Advertising by the plaintiff’s bar which has fostered a general public sentiment that lawsuits involving truck crashes are inherently valuable cases worth millions of dollars—regardless of the facts of the case.

3. Anti-truck sentiment by the general public. Many feel intimidated by the size, weight and speed of commercial trucks.