“Nuclear” verdicts are awards that are exceptionally high, eclipsing what would be a rational, reasonable, or expected amount based on the evidence. Three recent jury verdicts awarding unreasonably large compensatory and punitive damages to alleged toxic exposure/product liability plaintiffs in Nevada, Missouri, and Washington are examples of this type of verdict.
These verdicts show that the risk of such awards should always be accounted for in strategizing one’s defense to an alleged toxic exposure/product liability case. However, since some or all of these verdicts may be subject to post-verdict challenges in the trial court or on appeal, and since juries remain willing to find for the defense in these types of cases (see Defense Verdict in Alleged $40 million Connecticut Benzene Product Liability Case), the verdicts also underscore the importance of risk management through strong defense advocacy. Developing defenses on causation and other grounds, aggressively pursuing opportunities for pre-trial dismissal such as summary judgment, educating juries with the right experts, and considering settlement when strategically appropriate can reduce the potential for large defense pay-outs.
• $228.5 million for alleged hydrazine-contaminated water in Nevada
More than 50 plaintiffs in multiple lawsuits have alleged they developed liver failure and/or other injuries as a result of drinking a manufacturer’s bottled water, which was marketed as a healthy alternative to tap water. Plaintiffs claim the water was tainted with hydrazine, a chemical found in rocket fuel, as a result of the manufacturing process. In 2021, the Food and Drug Administration (“FDA”) opened an investigation after at least five consumers developed liver failure after allegedly drinking the water, and accused the manufacturer of violations. The manufacturer reached an agreement with the FDA and the product was recalled.
Gallagher, in Clark County (Las Vegas), Nevada, was the first of these cases to proceed to trial. At the time of trial, there were seven plaintiffs, including representatives of an infant who was hospitalized with liver failure and the estate of a woman who developed liver failure and died. The manufacturer claimed it drew the water from the local water supply, was unaware of the presence of hydrazine, and did not know to test for the chemical. On October 6, 2023, the jury found for the plaintiffs and awarded a total of $28.5 million in compensatory damages and $200 million in punitive damages.
The case is Gallagher, case number A-21-834485, in the District Court of Clark County, Nevada.
• $1.56 billion for alleged exposure to glyphosate in herbicide in Missouri
Plaintiffs across the country have filed suit claiming they developed non-Hodgkin lymphoma (NHL) and other ailments as a result of exposure to glyphosate in herbicides. In 2020, the primary defendant resolved the majority of the then-pending cases for up to $10.9 billion. However, thousands of these cases are still pending.
In a recent consolidated trial in Missouri state court, three plaintiffs alleged they developed NHL from exposure to glyphosate in herbicide they used. They asserted claims for strict liability, negligence, and breach of warranty, and derivative claims. In November 2023, the jury found for the plaintiffs on all causes of action, and awarded a combined $61.2 million in compensatory damages and $1.5 billion in punitive damages. The punitive damages award exceeds the single-digit ratio to compensatory damages established by the U.S. Supreme Court, and challenges to the verdict’s size can be anticipated.
The cases are Draeger, case number 22AC-CC00137, Gunther, case number 22AC-CC00965, and Anderson, case number 22AC-CC00968, in the Circuit Court of Cole County, Missouri.
• $165 million for alleged exposure to PCBs in fluorescent lights in Washington State
More than 100 plaintiffs have alleged polychlorinated biphenyls (PCBs) in fluorescent light fixtures at a school in Monroe, Washington caused one or more of a host of health issues, including cancers, cognitive impairments, hormone imbalances, neurological injuries, and respiratory illnesses. Litigation involving the alleged presence of PCBs at this school has generated more than $880 million in verdicts to date.
A Seattle, Washington jury recently found that PCBs injured six teachers, a librarian, and a custodian who worked at the school during various times spanning 1989 to 2016. The defendant, supplier of the fixtures, argued that the scientific literature did not sufficiently connect PCBs to the alleged health issues for causation to be proven. The defendant also emphasized that testing did not highlight elevated levels of PCBs at the school, and blood test results showed that people at the school had PCB levels consistent with the background rates in the general population. Nonetheless, in November 2023 the jury sided with the plaintiffs and issued a combined award of $49.8 million in compensatory damages and $115.3 million in punitive damages. The defendant announced its intention to appeal.
The case is Heit, case number 18-2-55641-4, in the Superior Court of the State of Washington, King County.
Conclusion
These “nuclear” verdicts are examples of unreasonably high compensatory and/or punitive awards in toxic exposure/product liability cases. Nevertheless, and underscoring the importance of risk management through defense advocacy, these verdicts may be subject to post-verdict challenges. And juries otherwise remain willing to find for the defense in product liability/toxic tort cases (see Defense Verdict in Alleged $40 million Connecticut Benzene Product Liability Case). Developing strong defenses on causation and other grounds, aggressively pursuing opportunities for pre-trial dismissal such as summary judgment, educating juries with the right experts, and considering settlement when strategically appropriate can reduce the potential for large pay-outs.
