Last week, a Cook County judge officially entered a historic jury verdict, $363 million to a woman from suburban Willowbrook who claimed emissions of ethylene oxide from the nearby Sterigenics medical device sterilization plant caused her cancer.
The jury verdict, rendered Sept. 19, is believed to be the largest jury verdict ever awarded in Illinois to a single plaintiff.
However, while monumental, the verdict stands as the latest, and perhaps most eye-popping example, of a growing trend of so-called “nuclear verdicts” – huge court-ordered damage awards of $10 million or more that legal reform advocates believe is hurting the economy and consumers.
And Cook County’s courts are playing a leading role in fueling that trend, according to a new report from the U.S. Chamber of Commerce’s Institute for Legal Reform.
The report tracked and analyzed 1,376 jury verdicts worth at least $10 million rendered in courts across the country from 2010-2019. The report broke the “nuclear verdicts” into four categories.
According to the report, about half of those verdicts were between $10 million and $20 million.
About 33% were $20 million to $50 million, while an additional 16% were worth more than $50 million.
However, 101 of the “nuclear verdicts” were dubbed “mega nuclear,” with damages exceeding $100 million.
The report asserts “nuclear verdicts” are increasing in both size and frequency, with the median “nuclear verdict” increasing by 27.5% during the preceding decade.
In the report, the ILR asserts the massive verdicts are being driven by several factors. These include claims that plaintiffs’ lawyers have improved their ability to allegedly manipulate jurors, using “reptile theory tactics” that “instill a sense of fear or danger in jurors’ minds so they lash out at their perceived attackers with inflated damage awards,” or to suggest jurors use specific methods for calculating damages that make a “nuclear verdict” award more likely.
Such an “anchoring” tactic “creates a psychologically powerful baseline for jurors struggling with assigning a monetary value to difficult-to-define damages,” the report asserts.
“Once a plaintiffs’ lawyer drops the anchor, jurors often either accept the suggested amount or ‘compromise’ by negotiating it upward or downward,” the report said.
The ILR report noted in Chicago, for instance, an attorney representing a woman who was injured when a bus shelter collapsed on her during a storm, told jurors during closing arguments the city of Chicago owned the woman $175 million for her injuries and suffering. Jurors ultimately entered a verdict worth $148 million. The parties, however, settled for $115 million, to avoid further arguments over whether the jury’s verdict should be allowed to stand.
Beyond such courtroom tactics, however, the ILR asserts plaintiffs’ lawyers have improved their ability to market the “extraordinary verdicts,” which “shapes potential jurors’ views of appropriate compensation.”
And the ILR said reasonable settlements have become more difficult to obtain in recent years, as increasingly abundant third-party litigation financing has added into the mix investors seeking big returns on their investments.
Illinois, Cook County driving the trend
While the number and size of such verdicts continues to increase nationwide, the ILR said certain states and court systems bear outsized responsibility for driving the trend.
The report noted Illinois ranks sixth nationwide for “nuclear verdicts.” From 2010-2019, the Prairie State logged 75 verdicts worth at least $10 million, according to the ILR report.
Florida ranked first in the country with 213 “nuclear verdicts.” The Sunshine State was followed by California, with 211 such verdicts; New York, with 151; Texas, with 132; and Pennsylvania, with 78.
Georgia (53), New Jersey (35), Washington (34) and Missouri (27) rounded out the Top 10 among states for nuclear verdicts.
When adjusted for population, however, Illinois actually ranked fourth nationally, still behind Florida, New York and Pennsylvania. California was fifth per capita, and Texas dropped to 10th, according to the ILR report.
In all, the ILR report indicated the Top 10 states for “nuclear verdicts” accounted for nearly three-quarters of all such large verdicts entered throughout the U.S.
And just as many of the country’s largest states accounted for the bulk of such verdicts, so, too, have courts in Chicago largely driven Illinois’ “nuclear verdict” activity.
According to the report, two-thirds of all “nuclear verdicts” entered in Illinois came from trials in Cook County Circuit Court.
And 25% of Illinois’ “nuclear verdicts” have also come from Chicago’s federal courts, the ILR reported.
The “nuclear verdicts” are not harmless exchanges of money between offending companies and those allegedly harmed by their alleged misconduct, the report said. Rather, the increasing size and frequency of the “nuclear” and “mega nuclear verdicts” serve to boost prices for consumers, while making a range of key products, like herbicides used in food production, and essential services, like trucking, more difficult and costly to provide.
“The outlier nature of a nuclear verdict can impose substantial added costs in an unpredictable manner that is unrelated to market forces such as the cost of a product’s raw materials or labor for a service,” the ILR said in its report. “As a result, consumers may ultimately bear higher costs and increased volatility as opposed to what they reasonably expect to pay for everyday items and services.”
For businesses, such staggering outlier damage awards can also lead to job losses or business closures, while shaking the confidence of business owners in the durability of the rule of law in the states, counties and cities in which they do business, and may choose to relocate or close up shop altogether.
“The reality is that these awards permeate innumerable aspects of every American’s daily life,” the ILR report said. “They increase the costs of food, housing, health care, and other valued goods and services, as well as insurance for things such as a car, home, or other property.
“While some jurors and members of the public might think of a nuclear verdict as ‘sticking it’ to a business, the reality is that they are sticking added layers of costs to themselves and their communities.”
In Cook County, the judge who oversaw the trial that resulted in the $363 million award against Sterigenics and related companies will in coming days consider motions to reduce that award, or seek a new trial.
But behind that case are nearly 760 others leveling similar claims, setting the stage for potentially hundreds more “mega nuclear verdicts” to come, worth potentially many billions of dollars more. And such verdicts could then spur even more litigation, seeking mega verdicts, against a host of other companies, producing essential goods and services, who also use the same ethylene oxide chemicals in their manufacturing and preparation processes.
To address such mounting litigation burdens facing businesses and the economy, the ILR suggested a series of reforms, including new laws reining in the abuses perceived by the ILR in how trials are now conducted in jurisdictions like Cook County.
Among other reforms, the ILR suggested laws to better police the introduction of so-called “inflammatory evidence” by trial lawyers, which could stir up the jury to award massive damages in a bid to “punish” a defendant, even if the connection between the alleged conduct and the plaintiffs’ injuries aren’t clear.
The ILR report also calls for:
- “Venue reform,” to prevent plaintiffs’ lawyers from pushing cases into friendly court systems, like Cook County, even if the cases could be better tried elsewhere;
- Damages caps, particularly for pain and suffering, to create more “predictability in what damages are ultimately awarded, and to limit the award of punitive damages, which exceed the desire spelled out in the law to dissuade the defendants from continuing to engage in the alleged misconduct;
- Laws that address “misleading lawsuit advertising,” which tout “nuclear verdicts,” to entice plaintiffs to file suit;
- Laws to “promote sound science in the courtroom,” and empower judges to serve as “gatekeepers” in court to ensure “experts” are testifying and presenting evidence using “reliable scientific principles and methods;” and
- Laws to require greater disclosure of the third-party investors who are funding and financing lawsuits.
Editor’s note: The Cook County Record is owned by the Institute for Legal Reform.