Comparable Number of Trials and Plaintiffs’ Verdicts
The Jury Verdict Service’s annual summary reported on 113 trials in 2016 compared to 110 in 2015. These numbers are down from the preceding two-year period: there were 133 trials in 2014, and 122 trials in 2013.
Because trials may involve multiple claims and multiple verdicts, the verdict statistics are based on the claims and not the cases. For the 113 trials in 2016, there were 199 verdicts for claims and for the 110 cases in 2015, there were 178 verdicts for claims.
Although the number of trials has decreased from 2013 and 2014, the percentage of plaintiff verdicts is little changed. In both 2015 and 2016, 42% of the verdicts were for plaintiffs compared to 38% for plaintiffs in 2014 and 40% in 2013. These numbers are down from the 55% of the verdicts for plaintiffs in 2012.
Comparable Average Monetary Awards
The overall average of the monetary awards for plaintiffs’ verdicts also remained almost the same in 2016 as they were in 2015. In 2016, the average of plaintiffs’ verdicts was $1,383,549 while the average in 2015 was $1,376,323. Both of those averages are over $1 million more than the average plaintiffs’ verdict in 2014, which was $350,730. While each of these figures is far below the $5,577,689 average verdict in 2013 and somewhat lower than the $1,772,469 average in 2012, the 2013 numbers were skewed by a single $400 million verdict that inflated the 2013 average.
Fluctuating Number of Large Verdicts
Although the average plaintiff’s verdict was similar in 2016 compared to 2015, the number of verdicts exceeding $1 million more than doubled in 2016. There were 16 verdicts of $1 million or more in 2016 and only six such verdicts in 2015. The number of million dollar or more verdicts has fluctuated over the last five years. In 2012, there were 19 such verdicts but only five in 2013 and then ten in 2014, the recent year with the lowest average monetary award in plaintiffs’ verdict matters.
Juries in the following venues awarded million dollar or more verdicts over the last five years.
- Over the last four years, the percentage of defense verdicts on plaintiffs’ claims has consistently hovered around 60%.
- When money has been awarded, the average verdict amounts over the last two years were nearly identical.
- Half of the seven-figure jury awards over the last five years have occurred in Jackson County, Missouri state court .
Although every case is different, information regarding verdict percentages and jury award amounts in the specific venues can help assess the values of cases and claims. For instance, recent data confirms the received wisdom among experienced practitioners that juries in Jackson County, Missouri, are more likely to assess million dollar or more awards on plaintiffs’ claims than juries in Platte County, Missouri. As always, clients, as well as national counsel who are working with local counsel, should carefully consider the forum when assessing the value of a case.
Source: Greater Kansas City Jury Verdict Service Year-End Reports 2012-2016
Success in Tackling the "Reptile Theory" of Trucking Accident Litigation With a Motion to Dismiss and StrikeMay 25, 2016 | Shawn Rogers and Angela Higgins
The so-called “reptile theory” of plaintiff’s litigation, frequently aimed at trucking companies, attempts to put the company on trial rather than litigating the circumstances of a particular accident. In furtherance of a “reptile” approach to litigation, plaintiffs frequently make broad allegations of alleged company misconduct, and on the bases of these allegations attempt to conduct sweeping discovery into company practices. The foundation for these tactics is allegations in the complaint of negligent hiring, retention, qualification, supervision, and training (usually made without any factual support), as well as claims of violations of the Federal Motor Carrier Safety Act (“FMCSA”) and the Department of Transportation’s regulations implementing the act, the Federal Motor Carrier Safety Regulations (“FMCSR”) (which do not give rise to causes of private causes of action). Kansas trucking plaintiffs are also in the habit of alleging a right to recover attorneys’ fees under K.S.A. §66-176 for the company’s supposed violations of state laws for the regulation of common carriers.
A recent federal opinion dismissing a plaintiff’s hiring- and retention-based claims, striking allegations related to the FMCSA and FMCSR, and dismissing plaintiff’s claim for attorneys’ fees, may be of interest to practitioners fighting a “reptile” approach to litigating trucking cases. In Drake v. Old Dominion Freight Line, Inc., the U.S. District Court for the District of Kansas granted the defendant’s motion to dismiss and to strike broad claims and allegations aimed at the company, finding that the plaintiff failed the Twombly and Iqbal tests by not including sufficient factual allegations in support of negligent hiring/ retention/ qualification/ supervision theory, and failing to provide either a factual or legal basis for allegations made under the FMCSA and FMCSR and the claim for attorneys’ fees under K.S.A. §66-176.
In Drake, a Kansas district court applied Twombly and Iqbal to dismiss claims for negligent hiring, retention, supervision, qualification, and training. Under the now-familiar analysis, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” and thereby survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Drake court found that “[t]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Memorandum and Order at 2 (quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007); emphasis original). This is significant because the allegations in Drake took the form of a boilerplate complaint that was identical, virtually word-for-word, to complaints that we see regularly filed in trucking cases in this jurisdiction.
Kansas imposes tort liability for damages “caused by the negligent hiring and retention of an employee whom the employer knew or should have known to be unfit or incompetent.” Thomas v. Cnty. Comm’rs of Shawnee Cnty., 198 P.3d 182, 193 (Kan. Ct. App. 2008). In order for an employer to be liable for negligent hiring and retention, “the employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.” Hollinger v. Jane C. Stormont Hosp. & Training School for Nurses, 578 P.2d 1121, 1127 (Kan. Ct. App. 1978). Plaintiff in Drake, however, failed to plead any factual allegations supporting the legal conclusion that the defendant hired or retained an “unfit” or “incompetent” employee whom it “knew or should have known to be unfit or incompetent.” Thomas, 198 P.3d at 193. Plaintiff failed to plead any factual allegations setting forth that the defendant had a “reason to believe that undue risk of harm exist[ed] to others as a result of the continued employment” of the driver. See Hollinger, 578 P.2d at 1127.
Moreover, although Kansas law recognizes the theories of negligent supervision and negligent training, there were no sufficient allegations in support of these theories. “Negligent supervision liability requires that the employer had reason to believe that the employment of the employee would result in an undue risk of harm to others,” Wayman v. Accor N. Am., Inc., 251 P.3d 640, 650 (Kan. App. Ct. 2011), while “[a] claim based on negligent training depends upon establishing facts showing that more or better training would have prevented the harm.” Estate of Belden v. Brown Cnty., 261 P.3d 943, 968 (Kan. App. Ct. 2011). Plaintiff’s general allegations that the defendant failed to properly train and supervise the driver, by “failing to have adequate safety management controls in place that would require and provide that [driver] had the required skills required under this regulation” was found insufficient by the court. Plaintiff pled no facts showing that this driver in particular was “incompetent” or “unfit” for his job, or that the defendant trucking company knew that this driver was “incompetent” or “unfit” for his job. The allegations of conduct by the defendant were not only reproduced verbatim from other complaints in this jurisdiction, they were nothing more than generally pled legal conclusions couched as factual allegations.
The Drake court also recognized that the FMCSA and FMCSR do not create private causes of action for personal injuries. Id. at 5 (citing Stewart v. Mitchell Transp., 241 F. Supp. 2d 1216, 1221 (D. Kan. 2002), which holds that “Section 14704(a)(2) creates a private right of action for damages in commercial disputes involving violations of the Motor Carrier Act and its regulations, but not for personal injury actions . . . .”). The district court, on this basis, struck from the complaint all references to supposed violations of the FMCSA and FMSCR. Memorandum and Order at 8. This includes allegations that the trucking company failed to properly qualify the driver.
Finally, and critically for Kansas practitioners, the Drake court rejected a claim to recover attorneys’ fees. While noting that the issue has not been definitively determined by the Kansas Supreme Court, the federal court nevertheless found that supposed violations of the FMCSA and FMCSR would be insufficient to state a claim for recovery under K.S.A. §66-176, and that plaintiff failed to provide “any factual allegations” as to how the trucking company violated “provisions of law for the regulation of . . . common carriers”; “Plaintiff simply states legal conclusions.” Memorandum and Order at 10.
The Drake ruling is encouraging for trucking company defendants defending against the “reptile theory.” Hopefully, this ruling will help to narrow the scope of discovery and trial, returning focus to the particular circumstances of the trucking accident as opposed to sweeping attempts to indict the company for its general policies and practices.
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