On his eighth birthday, Robert Middleton was tied to a tree, doused with gasoline and set on fire.
Middleton, who suffered burns over 99 percent of his body, said the perpetrator was Don Collins, a 13-year-old who had raped him weeks earlier. Collins was never charged, but more than a decade later Middleton’s parents sued him in Texas state court for the pain and suffering he inflicted on everyone. Middleton died on April 29, 2011, at the age of 20, after being diagnosed with a skin cancer linked to the burns.
On Dec. 20, 2011, a 12-person jury awarded Middleton’s parents nearly $150.4 billion — the largest in U.S. history and No. 1 on The National Law Journal affiliate VerdictSearch’s Top 100 Verdicts of 2011.
“The guy is just a complete monster,” said Clif Alexander, an attorney at Sico, White, Hoelscher & Braugh in Corpus Christi, Texas. “We just said to them, ‘You basically have an opportunity to send a message that people will remember forever — what happened to Robert, and what this Don Collins did who never had to face any punishment for it.’ ”
The verdict propped wrongful death cases into the top category of total verdicts for the year, even though there were only three on the list. In 2010, two wrongful death verdicts totaled a mere $141.2 million.
VerdictSearch based its list on its surveys of the nation’s courts, reports from attorneys and reporting by ALM Media LLC publications, to give as complete a view as possible of the litigation landscape. The list includes only the amounts awarded by juries and does not reflect any reductions or offsets granted by judges or courts of appeal.
Outliers like the Middleton case influenced the value of verdicts in several practice groups this year. Toxic torts, the third largest category, saw two verdicts totaling $1.9 billion, one of which involved a $1.5 billion award against Exxon Mobil Corp. in a gas station spill case.
Additionally, intellectual property verdicts nearly tripled among the top 100 cases compared with 2010, due in large part to a trade secrets case that ended in a $2.3 billion verdict against a former employee who fled to China and didn’t show up for trial. But even without that case, the value of verdicts in intellectual property cases — the second largest category — would have increased by 24 percent from 2010, to more than $3 billion. Other practices that substantially increased were medical malpractice and fraud verdicts.
Falling were products liability verdicts, typically one of the most consistent categories to generate large verdicts. Those dropped by 24 percent, to $1.38 billion in 2011. Awards in breach of contract and motor vehicle cases also fell.
BIG YEAR FOR IP
In intellectual property cases, 16 verdicts totaled $5.3 billion, compared with 11 cases in 2010. But a single case contributed 43 percent of the total value: Pacesetter Inc.’s April 22 victory against one of its former engineers in a trade secrets case over a cardiac rhythm device. Pacesetter, which does business as St. Jude Medical Inc., accused Yongning Zou of stealing documents and flash drives to set up a competing manufacturing company in China.
About six months before trial, Joseph Meckes, a partner in Squire, Sanders & Dempsey’s San Francisco office, withdrew from representing Zou, who stopped appearing in court after that. On June 24, a judge in Los Angeles reduced the verdict to $1.4 billion.
In another intellectual property case, an Eastern District of Virginia jury awarded $919.9 million on Sept. 14 to E.I. du Pont de Nemours and Co. in a trade secrets case against a South Korean company associated with the material Kevlar. The jury found that Kolon Industries Inc. stole 149 trade secrets from DuPont.
“I think in all honestly the evidence of the theft was overwhelming,” said Brian Riopelle, chairman of the IP litigation and patents department at McGuireWoods in Richmond, Va., who represented DuPont. Kolon has appealed the verdict.
Riopelle said he considered the case an outlier. “The value of this is extremely high. I don’t believe I’ll see another case like this for another five years or so,” he said.
Perhaps not, but increasingly large verdicts in intellectual property cases are being driven by the enormous stakes that companies face, said Kell Damsgaard, head of the intellectual property practice group at Morgan, Lewis & Bockius, which brought home two large intellectual property verdicts in 2011 totaling $700 million.
“I think active litigation is going up. Stakes are continuing to go high, and I wouldn’t be surprised if the trend continues,” he said.
And the trend was consistent across the country, not just in regions like the Eastern District of Texas, famous for its large verdicts in intellectual property. In fact, that district produced only four big verdicts during 2011, the largest a $482 million award on Jan. 28 to a New Jersey doctor who sued Johnson & Johnson for infringing on his patent for a drug delivery system. The doctor has sued at least two other companies in the district over the same patent.
Another area seeing significant verdicts was toxic torts. The Exxon Mobil case arose after a gas station’s storage tanks leaked an estimated 26,000 gallons of gasoline into the ground in a neighborhood that depended on well water. The jury awarded $500 million in compensatory damages for emotional distress, loss of property value and medical monitoring; most of the rest of the $1.5 billion verdict represented punitive damages. The lead plaintiffs’ attorneys were Peter Angelos and H. Russell Smouse of the Law Offices of Peter G. Angelos in Baltimore.
The value of medical malpractice verdicts among the top 100 increased by 233 percent, to $430 million. There were 10 decisions — double the number during 2010. The highest verdict, for $144.6 million, was awarded on Oct. 18 to a woman who sued the Michigan hospital where she delivered a daughter who suffered brain injuries.
The plaintiffs’ attorney in that case was Geoffrey Fieger of Fieger, Fieger, Kenney, Giroux & Danzig in Southfield, Mich. “What you’re seeing is not a tendency to have more lawsuits or more verdicts,” he said. “The defendants, the insurance companies and hospitals have become much more brazen. They believe with tort reform and a lot of the propaganda against lawsuits that’s out there, they, instead of settling the cases, have pushed them to trial. So that’s been the result.”
FRAUD, PRODUCTS LIABILITY
The value of fraud verdicts among the top 100 increased by 167 percent compared with 2010, to $612.7 million. One Medicaid fraud verdict of $170.3 million in Texas landed that category among the top 10. A jury on Feb. 1 found that Actavis Group had engaged in inaccurate price reporting that caused Medicaid to overpay pharmacies for prescription drugs. Actavis later settled the civil case, brought by the Texas attorney general’s office, for $84 million.
One of the most notable decreases was in products liability litigation, which saw verdicts among the top 100 decline by 24 percent compared with 2010. The number of verdicts also dropped, to 19 from 23. The largest products liability verdict was a $322 million award to a former oil field worker on May 4 that was touted as the largest in U.S. history in an asbestos case. The Mississippi Supreme Court reversed the decision, ruling that Smith County, Miss., Circuit Judge Eddie Bowen should have removed himself due to a conflict of interest — specifically, because his parents had sued co-defendant Union Carbide Corp. in their own asbestos case. The other defendant was Chevron Phillips Chemical Co. LLC. On remand, another judge assigned to the case threw out the verdict on Dec. 27.
Other major recoveries were realized in breach-of-contract cases, although that category declined by 58 percent compared with 2010; the highest verdict last year was $88.5 million, compared with a $269.4 million decision the year before.
Motor vehicle verdicts among the top 100 declined by 32 percent, to $297.3 million. And without the $150 billion award in the Middleton case, wrongful death verdicts would have plummeted by 54 percent in 2011, to $64.3 million.
In that case, Collins, who has been in and out of state prison for other crimes, never appeared in court, and no lawyer represented him. Alexander conceded that his clients won’t collect a dime. Instead, he hopes the verdict will compel local prosecutors to reopen a criminal case against Collins.
“We wanted this verdict to follow this Don Collins guy around for the rest of his life,” he said. “People will hopefully associate him with both the largest verdict in history and what he did to Robert and that he never was charged for it.”
Amanda Bronstad can be contacted at firstname.lastname@example.org.