Is Deception the Plutonium of the Nuclear Verdict?
Updated: Sep 24, 2020
Before Nixon’s Watergate cover-up;
Before Enron’s sham accounting tactics;
Before Bernie Madoff’s Ponzi scheme;
Before Credit Default Swaps, CDOs, and subprime loans;
Before Theranos’ phony blood testing;
Before Hester Prynne donned an A, Glenn Close boiled a rabbit, and Diane Lane was Unfaithful
Before Milli Vanilli.
There was Jacob.
Jacob wasn’t on the wrong end of a Ponzi scheme, didn’t lip synch, have a subprime mortgage, or test blood. He wasn’t interested in Diane Lane. Maybe if he was, it would have saved him from working 14 years for his father-in-law.
Of the many stories in Genesis, perhaps one of the more memorable is how on Jacob’s wedding night, he is deceived when his father-in-law switches his intended bride, Rachel for her sister Leah. The story of Jacob and his wives show how the seeds of deception have consequences.
From Watergate to wife-swap. DECEPTION. The oldest story.
Deception is an act or statement which misleads, hides the truth, or promotes a belief, concept, or idea which is not true. It is often done for personal gain or advantage and can involve dissimulation, propaganda, and sleight of hand, as well as distraction, camouflage, or concealment. Deception violates relational rules and is considered to be a negative violation of expectations. Most people expect friends, relational partners, and even strangers to be truthful most of the time.[i]
The Nuclear Verdict
The last ten years the country has watched as verdicts continue on an upward trajectory. There have been many explanations offered:
Our evolving millennial jury, a cohort with less corporate trust and dependence resulting from various historical and technological advances which occurred during their formative years;
A resourceful plaintiff bar able to harness social psychology, and avail itself of third-party litigation funding; and
An increased awareness, due to the internet, of corporate profits, executive compensation, and the outsized compensation of social media influencers, professional athletes, and Hollywood.
The upward verdict trend isn’t limited to the cases splashed across our newspapers and computer screens, but is found in the more mundane, less publicized cases as well.
Themes of Deception and Large Verdicts
The resourceful plaintiff bar, our evolving jury pool, the devaluation of the dollar, all combine to lay a foundation for a jury to go “nuclear.” The foundation may be set, but what is the catalyst? WHAT ABOUT THE PLUTONIUM? Plutonium is highly reactive, extremely toxic and its properties make it ideal as a catalyst for a nuclear weapon. Deception in a lawsuit works similarly in a courtroom. In many cases yielding a nuclear verdict there exists a theme of deception. Although most have been appealed, reduced, or settled post-trial it doesn’t change the fact that there was something in the testimony, evidence, and in the minds of jurors which catalyzed them go “nuclear” in the deliberation room.
The Jury Went Nuclear
In a highly publicized case last year, a California jury awarded more than $2 billion to a couple who claimed Bayer’s glyphosate-based Roundup weed killer caused their cancer. [ii] Their lawyer argued Monsanto (Bayer’s predecessor company)’s internal data and documents reveal its “manipulation and fabrication of science,” just like other defective products that got to market based on fraudulent representations that they were safe. [iii] “Monsanto keeps denying that it causes cancer and these two fine people here are casualties of that deception,” plaintiffs’ attorney was quoted as saying. (emphasis added) [iv]
In another hit to Big Pharma last year, Johnson & Johnson was ordered to pay $300 million in punitive damages to a woman who blamed her rare asbestos-related cancer on the company's talc-based products. This decision brought the total award in the case to $325 million, as the jury earlier awarded $25 million to the woman, and her husband in compensatory damages. Plaintiffs’ attorney was quoted as saying "With this verdict, yet another jury has rejected J&J's misleading claims that its talc was free of asbestos," "The internal J&J documents that the jury saw, once more laid bare the shocking truth of decades of cover-up, deception and concealment by J&J of the asbestos found in talc baby powder." (emphasis added)[v]
In 2017, a federal jury in California sent shockwaves throughout the healthcare and legal community when it returned a $454 million verdict against Kimberly-Clark Corp. and its affiliate in a case involving the sale of surgical gowns. The lawsuit alleged that Kimberly-Clark had misled buyers about the impermeability of the gowns. According to internal company communications and documents, while the gowns were being marketed and sold, concerns were also being raised amongst Kimberly-Clark executives and insiders about the quality, effectiveness, and compliance of the gowns.
Such internal communications about the effectiveness of the gowns undoubtedly helped lead the 8-person jury to conclude unanimously that Kimberly-Clark committed fraud in the marketing and sale of the gowns. One surprising aspect of the case, especially in light of the size of the jury verdict, is that no physical injuries resulting from a failure of the gowns in question to protect the wearer from pathogens have been reported. (emphasis added)[vi]
The Psychology of Deception
Trust is the bedrock of social life at all levels. Deception always undermines it. Because truth is so essential to the human enterprise, which relies on a shared view of reality, the default assumption most people have is that others are truthful in their communications and dealings. Most cultures have powerful social sanctions against lying. (emphasis added)[vii]
In mock litigation or focus-group sessions held before scheduled fraud trials, corporations have learned that juries may give them a hostile reception, said New York attorney Dennis Orr, who has defended companies that gave their cases a test run. "In fraud and securities cases in the past year or so, mock juries have been coming in with verdicts that far exceed the amounts that are even at issue in the cases," he said. "In just about every case, these juries are finding document destruction, bad audits or corporate waste where the plaintiffs haven't even raised claims of that kind."(emphasis added) [viii]
Jurors say they believe that executives of corporations conducted themselves in fraudulent ways, said Austin, Texas, attorney Kevin Sadler, who won a $132 million verdict in March against a BOC Group affiliate. In the BOC case, corporate scandals unconnected to the company appear to have left the jurors "predisposed" to finding his client liable, said Christopher Benson, a lawyer in Austin who represented a small company affiliated with the British conglomerate. [ix]
As we Zoom through 2020, current events are changing our worldviews. We have had time to introspect, reflect, and rethink everything about our lives individually and collectively. As discussed above, our millennial jury has been a cohort with less corporate trust and dependence than previous generations. I posit the events of 2020 will continue to change our worldviews and previously held assumptions. As we move through this unprecedented year during a health crisis, in which we challenge and reckon our country’s legacy of institutional and systemic racism, our corporate mistrust will continue to increase.
As discussed above “most cultures have powerful social sanctions against lying.”[x] When a theme of deception, cover-up, manipulation, concealment is revealed on the part of a corporate defendant, THAT IS THE PLUTONIUM. Like plutonium, the deception will act as a catalyst arousing the emotion and anger of the fact finders and increasing the risk of a nuclear verdict.
If Jacob was alive today, and commenced a civil action against his father-in-law, I’d probably advise his father-in-law to settle.
[i] https://en.wikipedia.org/wiki/Deception [ii] https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/california-jury-hits-bayer-with-2-billion-award-in-roundup-cancer-trial-idUSKCN1SJ29F. [iii]https://www.courthousenews.com/roundup-trial-monsanto-used-fake-data-to-win-over-regulators/ [iv] https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/california-jury-hits-bayer-with-2-billion-award-in-roundup-cancer-trial-idUSKCN1SJ29F. [v] https://www.cnbc.com/2019/05/31/johnson-johnson-must-pay-300-million-punitive-award-in-talc-case-company-will-appeal.html [vi] https://www.jdsupra.com/legalnews/jury-returns-massive-verdict-in-59901 [vii] https://www.psychologytoday.com/us/basics/deception