Nuclear Verdicts® are the bane of our existence. As the incidence and cost of Nuclear Verdicts® continues to rise, defense attorneys, corporations, and insurance professionals can only watch in fear. In Robert F. Tyson’s book, Nuclear Verdicts: Defending Justice for All, he highlighted critical defense methods for attorneys to utilize to defuse juror anger and stop a Nuclear Verdict® in its tracks.
A Nuclear Verdict®…Defused!
In a recent case out of California, plaintiffs sued after one of the plaintiffs was injured in a car collision.[i] She sued the driver as well as Nissan, the car manufacturer, alleging the airbags did not work properly.[ii] While plaintiffs’ counsel utilized their usual dirty tricks and tried to evoke anger in jurors, defense counsel innovated – he accepted responsibility for Nissan’s design of a properly functioning airbag and drew attention to the real responsible actor: the other driver. Jurors awarded $21 million…but all against the driver.[iii] Not a penny against Nissan! So, what happened?
The Nuclear Verdicts® defense methods happened! With a focus on common sense and accepting responsibility, defense was able to convey to jurors how Nissan should not be held liable for the mistakes of the driver and how Nissan tried to ensure the safety of the car by designing a functional airbag.
Common Sense Isn’t That Common!
Nissan’s attorney helped jurors use common sense to make their decision by presenting all the facts clearly and concisely while defusing any lingering anger. Counsel helped jurors better understand why plaintiff’s claim that she had struck the b-pillar in the car didn’t make sense. He emphasized two “silent witnesses,” or pieces of missing evidence. Defense counsel asked jurors to assess the lack of external injury on plaintiff’s head well as the lack of damage to the b-pillar.[iv] This way, defense counsel was able to show jurors there was a more logical conclusion. Instead of just leading jurors to this conclusion, defense presented the evidence and asked jurors to assess “which [was] more likely” – that plaintiff hit the curtain or the b-pillar.[v] Besides, defense emphasized, she would have had the same internal injury no matter what she hit.[vi] This allowed them to utilize common sense in their reasoning.
Accept Responsibility Now, or Accept Defeat Later
Nissan’s attorney did a fantastic job accepting responsibility. Their counsel highlighted the effort and care that went into making the airbag.[vii] Using details from Nissan’s testing process, their counsel described how they had followed federal standards.[viii] Their counsel also highlighted how Nissan spent years redesigning a critical feature of the car before making the change.[ix] In fact, Nissan tested more than 60 designs to try and figure out which one worked best. After they selected the best version, they conducted crash testing to confirm its efficacy.[x]
What Should You Do?
Embrace innovative new tactics! Both clients and defense counsel may want to shy away from accepting responsibility. Accepting responsibility is a critical step in the process of defusing juror anger and can significantly impact a verdict. While it may seem counter-intuitive at first to accept responsibility in front of the jury, it can lead to a fantastic outcome, like in this case, where Nissan’s defense accepted some responsibility and ended up with a net verdict of $0 against Nissan.
[i] David Siegel, $55M+ Trial Over Allegedly Defective Nissan Airbag Begins, Watch Gavel-to-Gavel via CVN, CVN (Apr. 18, 2023), https://blog.cvn.com/55m-trial-over-allegedly-defective-nissan-airbag-begins-watch-gavel-to-gavel-via-cvn; Nicole Salinas, et al. v. Fernando Galvis Ortiz, et al., case number BC569227 in Los Angeles County Superior Court.
[iii] David Siegel, Jury Awards $21M In Airbag Defect/TBI Trial While Clearing Nissan Of All Liability, CVN (May 10, 2023), https://blog.cvn.com/jury-awards-21m-in-airbag-defect/tbi-trial-while-clearing-nissan-of-all-liability.
[iv] Defense Closing Arguments via CVN, 1:02:45, https://cvn.com/sessions/26441/play?playFrom=0.
[v] Id. at 25:30.
[vi] Id. at 29:38.
[vii] Id. at 35:42.
[viii] Id. at 37:37.
[ix] Id. at 39:26.
[x] Id. at 41:38.