Going Nuclear

You’ve heard of nuclear explosions and the nuclear option. Nuclear verdicts? Maybe not. But as the name implies, we should all be wary of them.

The widely accepted definition of a nuclear verdict is one that exceeds $10 million. But if that’s the threshold for nuclear, then Texas is quickly gaining a reputation as the home of the ultra-nuclear verdict in trucking litigation. We’ll have more on that in a future blog post.

To better understand this, we need a refresher on the elements of damages in a tort action in Texas. For injury to a person or property (a tort action), a plaintiff may recover actual damages and punitive damages. The amount of money that is actually required to make the plaintiff whole constitutes actual damages. This includes economic damages, like the cost of past and future medical bills related to the injury, loss of future wages, and other quantifiable economic losses. It also includes non-economic damages, which are awarded for pain and suffering and similar items not subject to exact quantification. Punitive damages, which are awarded only in extreme circumstances, are meant to serve as a punishment or deterrent for the defendant, whose grossly negligent or intentional behavior lead to an otherwise preventable injury. 

Everyone wants plaintiffs to be made whole for their injuries, and there is no limit to the actual damages a plaintiff can receive to cover their actual costs and needs. Despite what many may believe, there are no limits on the recovery of actual damages in Texas, except that voters capped non-economic damages (pain and suffering, mental anguish, loss of consortium, etc.) in medical liability cases in 2003 to ensure all Texans have access to high-quality medical care. 

That means personal injury cases—like trucking accidents—are not subject to any limit on actual damages. That’s where nuclear verdicts come in. 

As we’ve highlighted before, personal injury trial lawyers have become increasingly creative in finding ways to inflate economic damages in lawsuits, including referring clients to doctors who over-treat the plaintiff and prescribe unnecessary procedures, including unnecessary surgeries. Juries often assume a person who has endured multiple doctor visits and incurred substantial medical bills must have experienced a significant amount of pain and suffering, which drives up non-economic damages. Punitive damages are set using a formula based on the amount of actual damages. And so, inflated medical bills can be the starting point for a nuclear verdict.

In lawsuits against trucking companies, the nuclear verdicts become massive judgements that are paid by the companies’ insurers. The cost of the judgement is passed along to the trucking company in the form of higher insurance premiums. And the trucking company passes that cost along to its end consumer—you and me—when we buy the food, clothing, electronics, fuel or other products the company hauls. Remember the Tort Tax?

What should concern all of us is that now it’s not just the company that was involved in the accident whose insurance rates go up. All trucking companies are facing rate increases—in some cases, of 25 percent or more—because of the increased frequency and size of nuclear verdicts. In Louisiana, it’s gotten so bad that most insurers won’t even write policies for commercial trucks anymore. Unfortunately, Texas is not far behind. We hope this is something the Legislature will work to address in 2021.