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Tampa, Fla. (August 19, 2021) – Reptile Theory Strikes
Again in Florida
There are more than a billion reasons to take a very close look
at what is happening in courtrooms across America right now.
Nuclear verdicts are occurring with increased frequency and can no
longer be ignored. The “Reptile Theory” is a trial
strategy that attempts to use fear and anger to make the jury
dislike the defendant so strongly they will award a plaintiff a
grossly excessive amount of damages. In other words, if a jury
believes that the defendant failed to enforce safety rules, and in
so doing created a dangerous environment for which the jury can
relate to personally, a jury will then punish the defendant by
awarding a big verdict at trial. (See our previous alert, “The Reptile Theory in Practice,” from
August 19, 2021.)
The Nuclear Verdict
For context, a “nuclear verdict” is commonly defined
as a jury award of $10 million or greater. However, one of the most
concerning litigation trends in the last 10 years has been the rise
of such awards that greatly exceed $10 million, and the percentage
of such nuclear verdicts is increasingly on the rise.
“B” is for Billion
On August 20, 2021, a Nassau County, Florida jury awarded
damages in a wrongful death matter in excess of $1 billion, after
just five days of testimony and four hours of
deliberation. Melissa Dzion v. AJD Business Services and
Kahkashan Carrier (Case No.: 2018-CA-000148). This
award included a punitive damages award of $900 million. Notably,
the amount of the award will be reduced because the jury found
comparative negligence and divided the liability between the two
co-defendants, but also because the award will certainly be
appealed.
Regardless, the Reptile Theory played out exactly as outlined
above. In this case, the decedent Connor Dzion had only attended
two weeks of classes at the University of North Florida, in 2017,
when an admittedly distracted semi-truck driver slammed into a line
of cars. Dzion had been in standstill traffic for over an hour, on
Interstate 95, due to an overturned semi-truck, ahead of him,
blocking movement on the highway.
One of the influential factors that led to the exorbitant
verdict returned by the jury was the fact that the semi-truck
driver admitted to being distracted by his cell phone. Further, the
driver had been given a job without a proper background check or
even a commercial driver’s license. Lastly, the driver had
previous violations for both driving aggressively and speeding.
Based on this set of facts, counsel for Dzion’s estate was
able to effectively portray the defendants’ collective conduct
as a threat to the safety of the general public and the award as a
deterrent needed to protect the community at large. The Reptile
Theory appeals to jurors’ emotions in place of any rational,
impartial evaluation of the evidence, which is evident in this
billion-dollar award.
Critical Threat to Trucking Industry
The average verdict size for a lawsuit above $1 million is ever
increasing and at an alarming rate. This, in turn, is driving up
insurance rates, which in some cases is forcing carriers and
companies from the market. Moreover, to cut costs, some operations
are scaling back excess insurance, increasing risk across the
board. Accordingly, the impact of such nuclear verdicts on the
trucking industry and similarly situated industries is
palpable.
Countering the Strike
To counter the Reptile Theory and prevent further nuclear
verdicts, like we see in Dzion and similar
cases, it is imperative that companies in the trucking industry
adhere to – and even exceed – the Federal Motor Carrier Safety
Regulations (FMCSR). From a litigation standpoint; this will afford
defense counsel the ability to document carrier and driver safety,
which will carry great weight with any jury. Finally, formulating
thorough and objective risk assessments are a must at the onset of
any case, and can only be accomplished with experienced litigation
counsel.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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