Judges and juries are doing what they can to punish bad actors across industries, in spite of legislative efforts to limit the same.
Ohio’s Efforts to Limit Nuclear Verdicts
In 2005, the Ohio General Assembly enacted tort reform by codifying R.C. 2315.18 (B)(2). That statute limits non-economic damages to $250,000, or three times the economic loss up to $350,000 per plaintiff, with a $500,000 limit per occurrence. There is no cap for catastrophic injury tort cases, such as those involving permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or other permanent physical injuries.
In the 2023 case of Brandt v. Pompa, the Ohio Supreme Court held that R.C. 2315.18(B)(2)’s limitation on non-economic damages is unconstitutional as applied to victims who have suffered permanent and severe psychological injuries as a resulting from being child victims of sexual abuse, holding, in pertinent part:
Psychological injuries are not included in the permanent-injury exception to the compensatory-damages caps for noneconomic loss provided in R.C. 2315.18(B)(3)(a) and (b). Those statutory provisions except permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system or permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.
Statutory cap on awards of compensatory damages for noneconomic losses set forth in R.C. 2315.18 is arbitrary and unreasonable and therefore unconstitutional as applied to plaintiff and similarly situated plaintiffs who were child victims of intentional criminal conduct, such as sexual abuse, and who bring civil actions to recover damages from the persons who have been found guilty of those intentional criminal acts to the extent that it fails to include an exception for plaintiffs who have suffered permanent and severe psychological injuries
Brandt v. Pompa, 171 Ohio St.3d 693, ¶ 30.
The Brandt decision – taken together with data from jury verdicts throughout the country – shows a trend of the judiciary carving exceptions into tort reform and of juries issuing “nuclear verdicts” to punish what they perceive to be bad behavior.
National Studies Show Nuclear Verdicts on the Rise
Indeed, a recent study conducted by Marathon Strategies found that juries had awarded $14.5 billion in “nuclear verdicts” – being the catchphrase businesses and insurers use to describe jury verdicts in excess of $10 million – which is a roughly 300% increase from 2020.
The study found that the median nuclear verdict rose to $44 million in 2023, an increase from $21 million in 2020. 2023 also saw a 15-year high with 89 lawsuits resulting in verdicts over $10 million, while 27 were “thermonuclear,” or more than $100 million. This is the largest number of such cases Marathon has identified since 2009. Indeed, thermonuclear verdicts in excess of $100 million have increased 400% from 2013.
As shown in this table, states with the largest sum of verdicts were Missouri ($4 billion), Texas ($3.7 billion), Pennsylvania ($1.2 billion), and Washington ($1.1 billion):
Product liability claims accounted for 37% of all cases, with this number being largely driven from lawsuits against Bayer AG for Roundup herbicide which allegedly causes cancer. On the flipside, while significant verdicts were levied against tech giants Google and Samsung, intellectual property verdicts actually declined by 43%. Nevertheless, nuclear verdicts impacted industries in every sector, as shown in this table:
In its study, Marathon attributes several factors to the growth of nuclear verdicts, including corporate mistrust, social pessimism, erosion of tort reform, public desensitization to large numbers, and a shift in the jury pool demographics via the influx of Millennial and Gen Z jurors who tend to be more pro-plaintiff and less trusting of big businesses. Marathon also suggests that nuclear verdicts will continue to rise in 2024 as a result of “a landmark $1.8 billion antitrust verdict against the National Association of Realtors and two brokerage firms (which settled in March 2024 for $418 million)” which has “fueled a rise in real estate commission lawsuits, with cases filed in federal courts in Missouri, California, Texas, New York, and Pennsylvania.”
Nuclear Verdicts Immune to Political Ideology
Nuclear verdicts are also immune to political ideology. In 2022, a bakery obtained a $32 million jury verdict against a small college for business interference/defamation related to the college suggesting that the bakery’s owners were racist. The following year, Dominion Voting Systems settled with Fox News for $787.5 million for similar business interference/defamation claims.
In close, nuclear verdicts are on the rise and it is only a matter of time another nuclear claim is filed. KJK is uniquely positioned to advise companies across sectors on methods to mitigate exposure to nuclear verdicts, whether it be before, during, or after litigation arises.
If you have questions regarding litigation exposure, please reach out to KJK’s Co-chair of Litigation, Samir Dahman (SBD@KJK.com; 614.427.5750) or Derek Hartman (DPH@KJK.com; 216.736.7248).