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KCIC is pleased to feature this post by Shari E. Belitz, Esq. the Chief Marketing Officer at Blueprint Trial Consulting, a litigation consulting firm.  The content of this blog post was excerpted from “Michael’s Insurance Daily,” a podcast in which Shari recently appeared as a guest.  Michael Young is an insurance coverage partner at the law firm of HeplerBroom LLC in St. Louis, Missouri.  The interview in full can be heard here.

As the COVID-19 health pandemic continues to unfold, there is one certainty. It will affect us all on both an individual and a collective level for years to come. This historical time will become ingrained in our consciousness and influence our worldviews. As we are all potential jurors, including children experiencing the pandemic, but still too young to serve on a jury, we will all bring the experience, feelings, and attitudes related to this crisis into the jury deliberation rooms across our nation when called upon to serve our civic duty. Individuals, businesses and their insurers may need to take these considerations into account when evaluating COVID-19-related claims or lawsuits brought in the years to come.

Social Inflation and Nuclear Verdicts

Prior to the COVID-19 crisis, one of the trending topics in the insurance industry and with the defense bar was social inflation and the rise of nuclear jury verdicts. Those of us who work in, or closely with these industries watched with disbelief as jury verdicts continued their upward trajectory. “Social Inflation” is a term that can trace its popularity in usage to a 2010 insurance publication, where it was coined to explain the increasing insurance losses the industry was experiencing. One of the many causes attributed to the social inflation phenomenon was the rise of the nuclear verdict. The technical definition of a nuclear verdict is a verdict in excess of $10M. However, the more common usage of the term is a verdict disproportionate to a plaintiff’s economic damages.

Explanations for Jurors “Going Nuclear”

It is general knowledge that by the time a corporate defendant reaches a courtroom, it is already waging an uphill battle against inherent bias. This inherent bias is further exacerbated by our evolving jury pool. Twenty years ago we had jury pools primarily comprised of Baby Boomers and Generation X jurors, while our juries are now increasingly consisting of Millennial and Generation Z. These younger jurors are highly influenced by the historical and technological events and changes of their times, and this particular cohort came of age during various corporate and political scandals, which sowed the seeds of general corporate and governmental distrust, while advanced technology resulted in less corporate dependence.

 How the COVID-19 Pandemic May Affect Juror Decision Making?

The COVID-19 health pandemic will affect all of us on both an individual and a collective level for years to come, possibly our whole lives. This historical time, like all significant history we experience, becomes ingrained in our consciousness and influences our worldviews on both a conscious and subconscious level.  The Great Depression, the Vietnam War, the destruction of the World Trade Center on September 11, are all examples of events which are etched into the human memory, of those who experienced them. Similarly, the COVID-19 pandemic will impact all of us well into the future. Accordingly, since we are all potential jurors, including those too young to serve, we will all bring this experience, feelings it conjures, and our resulting attitudes into the jury deliberation rooms across our nation for years to come.

Practical Considerations

The COVID-19 pandemic has swiftly changed our economy in a matter of days. The stock market has plummeted, we see mass layoffs, small business is suffering, and certain gig economy jobs have been decimated. Unfortunately, for most people jury duty is a burden, a hassle, an imposition on an already busy schedule where work, family, and other obligations take a back seat to our civic duty.  However, following an international crisis where the economy is impacted, the inconvenience can be more than just an annoyance. Jury duty can become a real obstacle for a person facing job security concerns and/or related childcare issues. Also, people may have residual, post-traumatic reactions, where they fear crowds, germs, common spaces, and transportation. This is significant because jury duty may be avoided or deferred for one or all of these reasons which may then lead to something called a Selection Bias.  Selection Bias is term used in statistics, that posits, when due to a certain factor, a group of people is not representative of a true sampling. In this context this means the people who do end up serving on juries in the immediate aftermath (who are not job insecure, concerned about germs etc.) may skew very similar, likely younger millennial, sharing similar attitudes and worldviews.

Will Jurors’ Resulting Fears Affect Their Verdict Preferences?

As any mass tragedy or crisis, the COVID-19 pandemic and the resulting mass fear and anxiety will find a place in our individual and collective psyche. There is a concept in psychology called the Terror Management Theory which provides a great deal of insight into how jurors manage the existential anxiety that is caused by the uniquely human knowledge of our own vulnerability and mortality. Based on the theory, individuals are able to achieve protection from death-related concerns by finding meaning within their culture worldviews.  When death-related concerns are made salient, people are motivated to punish those who violate their worldviews. We can only speculate how something as wide reaching, and emotionally disturbing as the viral pandemic of COVID-19 can have on the decision-making process of our future juries. We believe that recent events will likely impact jury decision making. Jurors will be more likely to punish defendants whose actions remind them of their mortality based on their need to preserve psychological equanimity in response to reminders of death.  Certainly, any evaluation of claims or lawsuits related to COVID-19 may need to address these possibilities.

Will the Effects of COVID-19 be More Likely to Influence Certain Cases?

Based upon research (not regarding COVID-19 specifically, but nuclear verdicts generally), COVID-19 may fit squarely into the paradigm where cases involving safety and danger to the community are affected disproportionately. Any types of cases which lend itself to a reptilian argument where danger to the community is an element, there is likely to be an effect which will express itself in the form of a jury verdict. However, there are a few caveats, exceptions, and things to think about.

Big Pharma and the medical industry are often the prime target of reptilian arguments. However, there may be a perception change in how jurors see medical professionals who have been front line responders risking their lives during this tragedy. Will pharmaceutical companies, often a target of reptilian arguments be able to redeem their reputation in the deliberation room if a vaccine is developed and COVID-19 is eradicated or controlled? A strong possibility, at least in the immediate future. Companies employing delivery drivers, grocery store workers, and other employment deemed essential, may have corporate stories that connect to jurors that show how they delivered essential services to their communities.  Are these defendants now the heroes because they stayed open and delivered essential services while plaintiffs are seen as greedy for asking for large damages when most people are suffering economically?