Nuclear Verdicts® continue to climb in severity and frequency, increasing by 27.5% over 10 years.[1] In the trucking industry, the average value of a verdict above $1 million has increased from $2.3 million to $22.3 million between 2010 to 2018.[2] Many businesses and defense attorneys have been left wondering if Nuclear Verdicts® are the new norm. This trend continued in Hernandez-Arrezola et al. v. Geriq Logistics LLC et al., where a trucking company was recently hit with a $13.1 million verdict.

What Happened

Delia Hernandez-Arrezola and her family were driving down the I-10 freeway when they were rear-ended by a semi-truck.[3] The semi-truck was driven by James Martin, owned by Geriq Logistics LLC, and attached to a trailer owned by Ramon Leon.

Hernandez-Arrezola allegedly suffered a teardrop fracture in her neck and a mild traumatic brain injury.[4] One passenger in the car had a preexisting knee tear that he claimed was worsened by the incident, and another suffered soft tissue injuries. [5]

Defense’s Argument

At trial, the defense highlighted the family’s medical history in an effort to prove their injuries were pre-existing and unrelated to the crash.[6] Further, the defense showed Hernandez-Arrezola returned to work as a registered nursing assistant not long after the crash and was working during trial. Jurors were not swayed. After two days, they returned a $13.1 million verdict for the plaintiffs.[7]

Common Sense and Reasonableness

The defense highlighted the plaintiffs’ medical history and provided evidence Hernandez-Arrezola had returned to work and was still working. The defense may have hoped the jury would see the damages were minimal; however, common sense alone did not sway this jury. This theme may have been strengthened if combined with the Nuclear Verdicts® defense themes of accepting responsibility, giving a number, personalizing the corporate defendant, and arguing pain and suffering.

Accepting Responsibility

The defense would have likely benefited from accepting responsibility at trial. The purpose of accepting responsibility is to defuse anger and appear reasonable.[8]  Plaintiffs’ attorneys have learned provoking anger in jurors is essential in their quest to obtain the highest verdict possible.[9] As such, the defense must defuse that anger by validating it.[10] When an attorney appears reasonable, that reasonableness is imputed to the party they represent. A defendant who appears reasonable by accepting responsibility for something allows the jury’s focus to shift to the opposing party’s comparative fault.[11] This allows the jury to reasonably assess the plaintiff’s accountability, which will likely result in a lower apportionment of fault, and lower damages awarded.[12]

Here, instead of accepting responsibility, the defense counsel contended the truck driver was attempting to pass the plaintiffs’ vehicle when the right front tire of the semi-truck hit something on the road.[13] This caused the truck driver to lose control, merge into the plaintiffs’ lane, and rear-end their vehicle.[14]

If it appeared inevitable the jury would conclude the driver rear-ended the plaintiffs’ vehicle, the defense could have accepted responsibility for that fact. Alternatively, the defense could have accepted responsibility for the driver attempting safely to pass the plaintiffs’ vehicle.  It is possible to accept responsibility for a positive fact while still demonstrating reasonableness and inviting the jury to consider the plaintiffs’ responsibility.

Giving a Number

Defense counsel might have benefited from giving a number throughout trial. Giving a number early and often, and ensuring that number never goes up throughout trial, can significantly impact the jury’s award. The number functions as a defense anchor, an alternative to plaintiff’s extremely high demand.[15] In this case, it is not clear whether defense gave a number or not.

Personalizing The Corporate Defendant

Defense counsel may have benefited by personalizing their client. In many Nuclear Verdicts®, the jury knows everything about a plaintiff but almost nothing about the defendant.[16] Defense attorneys must find a way to personalize their corporate defendant in order to make an emotional connection with the jury and counter corporate mistrust.[17] This is another powerful tool to defuse juror anger. As a company is entitled to the same impartial treatment as a person, having a jury relate to a corporate client is critical because juries will likely impose higher awards against defendants they identify as a faceless brand.[18]

It is unclear whether the defense attempted to personalize their corporate client in this case. It appears their main strategy was to argue the plaintiffs’ injuries were exacerbated and Hernandez-Arrezola’s damage was minimal because she was able to return to work. The defense could have personalized Geriq Logistics LLC. Gehriq Logistics LLC could have been portrayed as a small company that started in Arizona and, with a lot of hard work, grew to 18 employees.[19]  Many Americans are small business owners or have a dream of starting their own, and this type of strategy could have helped connect the jury to Gehriq Logistics LLC in an impactful way. This may have led the jury to consider the impact of a Nuclear Verdict® – it could put a small business underwater, destroying someone’s life goal.

Arguing Pain and Suffering

Defense counsel benefits from arguing pain and suffering, but most largely ignore the power of this tool. Generally, defense fails to make any arguments for pain and suffering. While it is not clear what defense did here, arguing pain and suffering could have changed the outcome. To properly argue pain and suffering for the defense, attorneys should be discussing the impact of money on the plaintiff as well as the impact of the accident on the plaintiff’s life. In this case, defense could have discussed how plaintiff’s life was impacted by the accident, and highlighted the many ways the number proposed by the defense could change the plaintiffs’ life for the better. That extra money could have been spent on a vacation, or a hobby, or something else meaningful to each plaintiff’s life.

Takeaway

Even though Nuclear Verdicts® are becoming more common, the use of innovative defense strategies can help conquer them. The defense in Hernandez-Arrezola et al. v. Geriq Logistics LLC et al. attempted to draw on jurors’ common sense. However, using one method is not enough. Using all four methods is key to defusing juror anger and reframing the story jurors have with them when they enter the deliberation room.

*Aria Aghalarpour co-authored and was a law clerk in Tyson & Mendes’ 2023 clerkship program.

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Sources

[1] The Exponential Rise of Nuclear Verdicts, ALFA International, https://www.alfainternational.com/publications_news/the-exponential-rise-of-nuclear-verdicts/ (last visited Jul. 31, 2023).

[2] Meaghan Tyndale-Williams, The Alarming Increase in Nuclear Verdicts Across the Trucking Industry and How to Avoid Them, JGS Insurance (May 14, 2023), https://www.jgsinsurance.com/the-alarming-increase-in-nuclear-verdicts-across-the-trucking-industry-and-how-to-avoid-them/

[3] Collin Krabbe, LA Jury Hands Family $13.1M Over Truck Rear-Ending, Portfolio Media, Inc. (May 12, 2023), https://www.law360.com/california/articles/1607165?nl_pk=451c8867-91a8-4530-aa3f-c458e9a55aea&utm_source=newsletter&utm_medium=email&utm_campaign=california&utm_content=2023-05-15&nlsidx=0&nlaidx=4?copied=1

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Robert F. Tyson Jr., Should You Accept Responsibility at Trial?, Claims and Litigation Management Alliance (Jun. 27, 2020), https://www.theclm.org/Magazine/articles/should-you-accept-responsibility-at-trial/2039.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Hernandez v. Gehriq Logistics LLC et al., JVR No. 2306230024 (2023).

[14] Id.

[15] Miller, K. (2017). Anchoring Your Argument: How to Use The ‘Anchoring Effect’ to Persuade. Retrieved from

https://courtroomlogic.com/2017/11/08/anchoring-effect/

[16] Robert F. Tyson Jr., Personalizing Corporate Defendants, Claims and Litigation Management Alliance (Dec. 18, 2020), https://www.theclm.org/Magazine/articles/Personalizing-Corporate-Defendants/2142.

[17] Id.

[18] Id.

[19]TruckDrivingJobs.com, https://www.truckdrivingjobs.com/companies/54caa94c9dc5d72c2860e6dd# (last visited Jul. 31, 2023).