In September 2013, Joshua Patterson was driving his pickup truck on US Highway 259 near Ore City, Texas, when a tractor trailer operated by Bill Acker rear-ended Patterson’s truck. Acker was driving the truck in the course and scope of his employment as a driver for FTS International Manufacturing. Following the accident, Patterson reported no injuries, telling officers at the scene he “was unhurt, felt fine, and he had no cuts, abrasions, or other visible injuries.”i Similarly, Patterson’s vehicle had minimal damage, and was still drivable.ii Immediately after the accident, Patterson drove his truck to a church luncheon, where he was headed prior to the accident.iii
In the weeks and months following the accident, Patterson began to complain of “moderate” neck and back pain, although he continued to work and was observed completing regular activities and lifting heavy objects without difficulty.iv Nevertheless, Patterson brought suit against both Acker and FTS for negligence, as well as against FTS for negligent hiring, training, and supervision of Acker.v After a seven-day trial, which included a bifurcated trial on exemplary damages, the jury returned a verdict award to Patterson totaling $101,361,337.09, $75 million of which was attributed directly to FTS in the form of punitive damages.vi
How could a simple fender-bender and moderate neck pain result in a $101 million jury verdict? The defense in this case failed to take necessary steps to prevent Nuclear Verdicts™:
The Defense Failed to Defuse Juror Anger:
Companies often believe by going above and beyond legal standards, and making their high standards known to the public, they are winning favor with customers and clients. While high standards have their place, in litigation, such statements or standards can be weaponized by plaintiff and used to stoke juror anger. Plaintiffs’ attorneys refer to internal corporate statements and standards to point out deviation from those standards. The goal is to make the corporation seem hypocritical and uncaring, even when the corporation has not violated a true standard of care.
This was plaintiff’s strategy in this case, to point out that FTS had several internal policies it failed to follow. FTS had an internal policy stating it would not hire drivers who had three or more violations in 36 months prior to the date of hire. Acker had three such violations prior to his date of hire, but these violations were not reported to FTS by FTS’s third-party verification service. This was an internal requirement, not a state or federal law, and FTS took reasonable steps to follow this process. Yet, plaintiff’s counsel painted this as an utter failure in FTS’s hiring system, arguing Acker “never should have been hired in the first place.”vii
FTS further required its employees to take several courses and employee training seminars to ensure all employees were properly trained. This included courses specifically for drivers, regarding material such as safe driving and driving under the influence. Although none of these courses were required by law, and many other companies do not require its drivers to pass such courses, FTS nevertheless implemented these requirements to uphold high education and training standards. The jury was shocked to hear Acker had never taken the required courses, and hear supervisors at FTS told Acker to sign a form stating he had completed courses, even though he had not completed them. Further discovery revealed Acker lacked mastery of the subjects covered in the mandatory training. Plaintiff’s counsel jumped on this opportunity to depict FTS as a company of liars and hypocrites, who cared more about their image than the safety of their community.viii
None of these failings were violations of state or federal law. These actions did not violate any known industry standard or any accepted standard of care. From a legal standpoint, plaintiff’s counsel was hard-pressed to find any negligent hiring, training, or supervision. However, plaintiff’s counsel was successful in their attempts to enrage the jury, convincing the jury FTS was a heartless, soulless corporation which failed to follow their own rules. This juror anger ultimately led to a $101 million dollar verdict against Acker and FTS.
Juror anger is the most common driving force behind Nuclear Verdicts™. Tyson & Mendes attorneys use proven methods to defuse juror anger and prevent Nuclear Verdicts™. Tyson & Mendes methods, such as accepting some responsibility, being reasonable, and employing common sense, have consistently proven effective at defusing juror anger and preventing Nuclear Verdicts™, even in the face of plaintiff counsel’s tricks.
The Defense Failed to Argue Pain and Suffering:
Arguing pain and suffering can be difficult, and many attorneys are hesitant to argue the matter in court. However, defense attorneys have an obligation to zealously represent clients at all stages of trial, including arguing plaintiff’s pain and suffering. In this case, defense attorneys did argue plaintiff’s pain and suffering, pointing out that plaintiff’s pain was not severe and did not impact his life. However, it is important to not only argue plaintiff’s pain and suffering is minimal. Attorneys must also argue a small settlement can make plaintiff whole, providing the jury with a lower, alternative number which would also bring relief to defendant. Tyson & Mendes attorneys argue pain and suffering in a tactful way, which depicts them as the most reasonable people in the courtroom.
The Defense Failed to Personalize the Corporate Defendant:
Throughout the trial, counsel for plaintiff and counsel for defense discussed FTS’s actions and FTS’s liability. FTS was described as Acker’s employer and the training, supervision, and hiring methods implemented by FTS were debated extensively. Unfortunately, the jury never learned the story of FTS, why it exists, or what it accomplishes. This allowed plaintiff’s counsel to frame FTS primarily as a faceless, corporate entity that hired a drug-using employee. This aided plaintiff’s counsel in its goal of instilling anger in the jury.
Here is what the jury should have known about FTS:
- The Barnett Shale natural gas deposit was discovered in Texas. The founders of FTS recognized the potential of the gas deposit and founded FTS International in 2002 with the goal of sharing Texas’ resources with the world.
- In true entrepreneurial fashion, FTS built the business from the ground up and used innovative technologies and vertical integration to create a thriving enterprise. The story of FTS is the story of the American dream—when hardworking Americans saw an opportunity, they seized it, took on the risk which came with it, and worked until their business was a success.
- FTS has grown to be an icon in the oil and gas industry, going above and beyond to meet environmental standards, develop new technology, and distribute affordable oil and gas to everyday Americans who rely on these fuels.
- Although the founders are no longer with the company, FTS continues to grow and innovate in the spirit of its founders. With a diverse leadership team and infinite opportunities for employees to grow and advance within the company, FTS recognizes it has a responsibility to train and supervise its employees and takes all reasonable steps to protect its customers and community.ix
Tyson & Mendes attorneys know to personalize a corporate defendant: to tell the story behind the corporation and show the names and faces behind businesses. By personalizing the corporate defendant, Tyson & Mendes attorneys can prevent Nuclear Verdicts™ like the one levied against FTS.
In our modern litigious environment, Nuclear Verdicts™ are a problem. This problem is only getting worse as verdicts continue to skyrocket year after year. It is essential, now more than ever, defense attorneys take every step possible to prevent against Nuclear Verdicts™ and runaway juries. By avoiding “reptile traps,” arguing pain and suffering and other noneconomic damages, and personalizing the corporate defendant, Tyson & Mendes can help your business prevent Nuclear Verdicts™ and obtain a favorable outcome at trial.
i FTS Int’l Servs., LLC v. Patterson, No. 12-19-00040-CV, 2020 WL 5047913, at *1 (Tex. App. Aug. 26, 2020).
iv Patterson, No. 12-19-00040-CV, 2020 WL 5047913, at *2 (Tex. App. Aug. 26, 2020).
vi Patterson, No. 12-19-00040-CV, 2020 WL 5047913, at *2 (Tex. App. Aug. 26, 2020). Notably, the $101 million jury verdict was reduced by the trial court because the original verdict was excessive. Later, the appeals court ordered a new trial in this case. Although the actual damages in this case are yet to be determined, this case still provides an exceptional case study in nuclear verdicts. Noi Mahoney, Texas appeals court wipes out $31.6M nuclear verdict as ‘excessive’, FreightWaves (Aug. 28, 2020) https://www.freightwaves.com/news/texas-appeals-court-wipes-out-316m-nuclear-verdict-as-excessive.
vii John Kingston, The biggest ever? Truck accident in Texas leads to a $100+ million award, FreightWaves (Jul. 23, 2018) https://www.freightwaves.com/news/verdict-trucking-company-big-award. This testimony became especially harmful once plaintiff’s counsel revealed that Acker had been using marijuana, and methamphetamines consistently in the months leading up to the incident.
viii John McCoy, A teaching moment on trucking accidents, LPGas (May 29, 2019) https://www.lpgasmagazine.com/a-teaching-moment-on-trucking-accidents/.
ix FTS Corporate Website, https://www.ftsi.com/our-company/imagine-more/default.aspx (last accessed March 23, 2021.)