TLA Feature Articles and Case Notes

significant problematic evidence (unfavorable to the motor carrier) are generally not settled or tried to verdict for less than $1,000,000.

The ATRI Dataset

The American Transportation Research Institute collected litigation data for 641 cases spanning 14 years. Every case in the study involved some form of litigation and concluded with either a settlement or a verdict—so small claims and early settlements (such as the type pursued by settlement mills) were not included in the data set. The cutoff for the dataset was $1,000,000—only payments under that amount were included.

The mean payment size in the dataset from 2007 to 2019 was $427,336 with a median value of $400,000.11 ATRI’s statistical analysis reveals with a 95% confidence interval that motor carriers facing litigation in small cases can generally expect to pay between $406,386 and $449,792.12

Settlements in Small Cases Are Generally Higher than Verdict Amounts for Similar Injuries/ Litigation Factors

One of the most interesting aspects of ATRI’s study was that it found that payment amounts differed considerably between verdicts and settlements. Approximately 50.3% of all cases ending in settlement in the dataset involved payments greater than $500,000, but only 31.5% of cases ending in a verdict resulted in payments greater than $500,000.13 The majority of cases with payments under $100,000 concluded with a verdict.14 Generally, settlements were found to be approximately $135,805 greater than verdicts on average.15

One possible explanation for the observed disparity between settlement and verdict amounts could be that litigation expenses are significantly higher for cased tried to verdict, and thus defendants may be willing to pay a premium on settlement to avoid litigation costs. Another possible explanation is that the settled cases, if tried to verdict, may have resulted in verdicts exceeding $1M. Settlements and verdicts under $1M are not necessarily directly comparable depending on the facts and circumstances of the litigation.

ATRI produced a settlement prediction model based on the data categorized by injury/litigation factor which describes the likelihood of cases settling:

ATRI did not find a statistically significant impact on payment size based on federal versus state jurisdiction, although the data did reveal that the proportion of state court cases with payments exceeding $800,000 was nearly twice that of cases in federal court; however, state court cases also represented a larger percentage of payments below $100,000. 21

Venue, Injury Type, Motor Carrier/Driver Violations, and Litigation Experts Can Significantly Impact the Amount of Payments in Small Cases

Venue: ATRI observed a statistically significant correlation between payment size and state venue. California, New Jersey and Missouri had the highest average payment sizes.17 Cases docketed in the state courts of California, North Carolina, Michigan, and New Jersey were found to be statistically predictive of larger payments.18 These data generally support the opinions of the America Tort Reform Foundation in its annual “Judicial Hellholes” report, the most recent report ranked California third on its list of unfavorable venues and listed New Jersey on a “watch list.”19 Payments in the ATRI dataset in North Carolina there were 70% above the national average; in Michigan payments were 65% above the national average; in California they were 56.1% higher than the national average and in New Jersey they were 51% higher.20

Injury Type: As you might expect, there is a statistical correlation between injury type and the size of the payment. Not surprisingly, ATRI found fatalities to be the costliest injury with an average payment of $607,532. What may be surprising is that cases involving a preexisting injury accounted for the second-highest payments, with an average payment of $561,432.22 Perhaps increased medical costs associated with treating injuries that exacerbated a preexisting condition are responsible for the higher general payments. Also interesting was that injuries to the neck and back were second-to-last and last in terms of average payment size: $395,487 and $368,237, respectively.23 ATRI noted that, while spinal cord injuries typically correlate with the highest average awards in nuclear verdict cases, the back and neck injuries typical of small cases are not typically spinal cord injuries. ATRI opined that there may be an incentive for plaintiff’s attorneys to exaggerate minor back and neck injuries at trial with the hope of receiving a large verdict, but jurors may see through the strategy and award lower payment. Statistical analysis of the data supports this opinion because 66% of cases involving neck injury in the dataset were resolved by verdict, with only 34% settling.24 This supports the idea that lowvalue cases involving allegations of neck injuries are litigated more frequently, either because defendants are confident in their position or plaintiffs are swinging for the fences on minor claims.

Motor Carrier / Driver Violations:

There is a statistical correlation between alleged infractions against the motor carrier/professional driver and payment size. Cases citing poor driver history resulted in the highest average payment size of $680,333.25 In addition to poor driver history, the other violations in the top 5 of payment sizes were: phone use ($629,375), hours of service violation ($564,531), asleep at the wheel ($543,343) and equipment failure ($503,641).26 Perhaps most importantly, ATRI found correlation between poor hiring practices, inadequate training, and poor driver history. This suggests that lack of proper oversight by a motor carrier is connected with driver inattentiveness, which echoes pronouncements by industry experts who stress the need for carriers to employ uniform and consistent hiring and onboarding protocols.

Use of Experts in Litigation: While the majority of cases in the dataset did not involve expert witnesses on either side, the data reveal connections between expert retention and payments. Cases involving a defense expert were more likely to be concluded with a verdict, while cases involving a plaintiff expert were more likely to resolve through settlement. 27 Cases where both parties retained experts were proceeded to verdict 36.9% of the time. There was no significant relationship found between expert witnesses and payment size across all cases, indicating that the economic benefit of expert retention is highly situational.28

Breaking the analysis down to separate verdicts from settlements and assess the impact of expert retention yielded some interesting results. First, ATRI found that the retention of defense experts was positively correlated with above-average settlement payments. In other words, defendants who retained experts typically paid more in settlement.29 One possible reason for this is that defendants facing cases with significant exposure may hire experts to avoid overpaying. Thus, it may not be correct the mere retention of an expert does not raise settlement value; rather, it is more likely that experts are retained in cases which are likely to have above-average settlement value due to the severity of the injury and/ or litigation factors.

Turning to verdicts, the study showed that cases with a defense expert only had verdict values 25.5% lower than average, while cases with no experts had verdict values 21% lower than average. However, when both sides retained experts, verdict values were 35.5% higher than average.

What Are the Chances? Predictions for Payout Amounts Based on Statistical Analysis

Predicting Large Payments: Looking at the factors discussed above, ATRI derived a matrix showing the likelihood of payment exceeding $600,000. The results of the findings are below.

landscape, but qualitative data obtained from industry professionals is particularly helpful when looking to craft strategies to minimize casualty payouts. In its study on nuclear verdicts, ATRI interviewed subject matter experts and industry stakeholder groups.33 The following is a summary of ATRI’s findings mixed with additional commentary from the authors.

Implement better safety programs and document the progress.

Predicting Estimated Payments: ATRI also conducted a linear regression which matched crash characteristics and litigation factors to estimated payment size. The table below shows the result as well as the percentage increase of the payment from the average.

In recent years, the most significant precursor to runaway trucking verdicts is systemic issues within the motor carrier’s operation rather than the specific facts of a particular incident. Issues such as poor hiring practices, drivers with bad histories, poor safety records, improper documentation of maintenance, inadequate safety and training programs at the motor carrier typically serve as the focal point for trial arguments by plaintiff’s counsel under the reptile approach, which is a trial strategy that uses fear and anger to motivate jurors should award damages to protect the community from danger rather than purely to compensate the plaintiff. This strategy has proven highly effective, and the plaintiff’s bar have generally become more organized around the strategy in cases with significant injuries.

What Do We Do? Strategies for Minimizing Payments

Quantitative provide us with great insights into the trucking litigation

Because this strategy relies upon demonstrating systemic failures within the company, the best defense to claims should begin long before an accident occurs. A robust safety and training program can not only help prevent accidents from happening in the first place; it can also help portray the company as a responsible corporate citizen when documentation of the program’s efficacy is presented at trial. Carriers should conduct detailed background checks on potential hires to determine any adverse information in the potential driver’s history. The carrier should administer and review drug tests on a periodic basis (and, of course, as required by law after an accident). In sum, the ability of defense counsel to demonstrate safety activities that exceed what is required under the Federal Motor Carriers Safety Regulations can significantly alter the jury’s view of the motor carrier.