By: Mollie Mallory and Nathan Flanigin
Have you noticed a drop-off in nuclear verdicts in trucking litigation over the past few months? If so, that is exactly what proponents of Texas House Bill 19 hoped for when putting this legislation into effect on September 1, 2021. The legislation, codified in Texas Civil Practice and Remedies Code §§ 72.051-72.052, attempts to limit nuclear verdicts that have plagued the trucking industry for the last few years. Future data likely will reflect what we already know: HB 19 gives defense attorneys in trucking litigation a set of useful tools to deploy against the reptile theory.
You can trace the rise of the reptile theory back to Reptile: the 2009 Manual of the Plaintiff’s Revolution. Based in neuroscience, the strategy focuses on provoking the innate feeling that, if a defendant continues a certain course of action, then the entire community is at risk.
Before HB 19, a crafty plaintiff’s attorney could establish safety rules through statutes, employee handbooks, industry standards, or employer handbooks, and then demonstrate how a defendant’s actions jeopardized a plaintiff’s safety in violation of the rules. The growing popularity of reptile theory triggered a spike in nuclear verdicts ($10 million or greater) that were often greatly disproportionate to the damages claimed.
Rising insurance rates and high-profile cases placed the issue center stage for Texas legislators. A particularly controversial $89.6 million verdict against Werner Enterprises served as a rallying cry for advocates of the legislation.
In that case, a Werner driver was travelling west on I-20 when an eastbound pickup truck lost control and swerved directly into the path of the Werner semi-truck. The investigating officers did not fault the Werner driver because he was driving below the posted speed limit, did not lose control of the semi-truck, and was able to come to a controlled stop after the collision. Despite those facts, the jury awarded a massive verdict against Werner based on the weather conditions and Werner’s hiring and training practices.
In response to cases like Werner, the Texas legislature passed HB 19 to attempt to subdue the use of reptile theory to secure similar nuclear verdicts. The law gives defendant trucking companies a powerful tool—a mandatory motion to bifurcate. A defendant seeking a bifurcated trial will get one as long as the defendant files a motion within 120 days of defendant’s answer or within 30 days of any new claim brought against the defendant.
A bifurcated trial can severely hamstring a reptile theory. A jury must find a truck driver liable before the jury can consider vicarious liability against a motor carrier and exemplary damages. In other words, the first phase of a bifurcated trial is limited to determining liability for the accident and the amount of compensatory damages. Once driver liability has been established, the jury then can consider the liability for and amount of exemplary damages in phase two of a bifurcated trial.
HB 19 also imposes limitations on evidence that can be introduced in phase one of a bifurcated trial. Plaintiffs cannot present evidence of a defendant motor carrier’s failure to comply with a regulation or standard, as defined in section 72.053(a) of the Civil Practice & Remedies Code unless: (1) the evidence shows that the failure was a proximate cause of the bodily injury or death for which damages are sought in the action; and (2) the regulation or standard is specific and is related to the duty of care. This restriction disarms attorneys that use flimsy regulations or standards to imply a driver acted unreasonably in violation of safety rules, a staple of the reptile theory playbook.
Further, HB 19 creates an additional impediment for plaintiffs seeking to present evidence of an ordinary negligence claim against the defendant motor carrier through respondeat superior. This phase one restriction covers any ordinary negligence claim that requires a showing of employee negligence related to the operation of the employer’s vehicle in cases where defendant timely stipulates that, at the time of the accident, (1) the driver was defendant’s employee; and (2) was in the scope of his employment.
However, evidence of claims that do not have such requirements, such as negligent maintenance, may be presented during phase one of a bifurcated trial. There is an exception to this prohibition for defendant motor carriers subject to the Federal Motor Carrier Safety Act (FMCSA). The exception allows plaintiffs to introduce certain evidence, enumerated in section 72.054(c), related to negligent entrustment.
Lastly, HB 19 creates a presumption that properly authenticated photographic and video evidence of vehicles involved in an accident is admissible even if it is used to refute a party’s assertion regarding the severity of the accident. This presumption prevents trial courts from requiring expert testimony to admit such evidence, except as necessary for authentication purposes.
It is clear from the procedural and evidentiary changes in HB 19 that the Texas legislature has identified reptile theory as a root cause of ballooning nuclear verdicts. Each provision attacks a different part of the reptile theory toolkit. A bifurcated trial prevents a jury from jumping the gun on exemplary damages without first establishing that the driver was at fault. The restrictions on regulation-related evidence, combined with admitting visual evidence of the accident, attack the heart of the reptile theory playbook—attempting to shift the focus from the accident to how safety rules should have prevented the accident. Taken together, the changes could level the playing field for commercial motor carriers if attorneys implement these tools.
Notably, these amendments govern only actions commenced on or after September 1, 2021. It remains to be seen how courts will interpret the amendments; but, logic dictates that settlement rates will rise until the plaintiffs’ bar figures out its next move. Until then, Texas legislators finally may have defanged the infamous reptile theory strategy, if only in the trucking industry.