Nuclear Verdicts in Construction Litigation: Defense Strategies to Mitigate Risk, Notable Verdicts and Lessons Learned
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Real Property - Transactions
- event Date
Tuesday, July 8, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will examine the risk of nuclear verdicts in the construction industry, address challenges for defense attorneys, and discuss lessons that can be learned from notable verdicts against construction companies. The expert panel will offer defense strategies to mitigate risk of nuclear verdicts—from developing the defense theory of the case, to voir dire and motion practice, to the selection and use of expert witnesses in trial.
Mr. Cahalan has substantial experience representing owners, contractors, subcontractors, engineers, architects, suppliers, manufacturers and vendors in connection with construction, commercial and other business matters. His practice primarily consists of drafting and reviewing construction contracts, providing advice during construction and construction litigation, arbitration and mediation. Mr. Cahalan was the primary drafter of the Associated Owners and Developers’ AOD 2002 – Standard Form of Agreement Between Owner and Contractor Where the Price Is Fixed or Lump Sum, and the Associated Owners and Developers’ AOD 2003 – Standard Form of Agreement Between Owner and Contractor for Work on a Cost Plus Fee Basis With a Guaranteed Maximum Price. He has also given numerous seminars throughout the U.S. and Europe concerning construction contracts, implied contract obligations, claims, green building, construction insurance, and mechanics lien law. Since 2010, Mr. Cahalan has been an instructor at the Georgia Institute of Technology where he teaches Design and Construction Law.
Ms. Cinnamond has over 30 years of experience and is highly skilled at successfully defending property owners, property and construction managers, developers, general contractors, and subcontractors in all types of general liability and construction defect cases. She also focuses her practice on commercial litigation and cyber law matters and has experience handling insurance coverage actions and appeals on issues involving risk transfer. Ms. Cinnamond is a frequent lecturer and author on a diverse range of legal issues.
Ms. Flam is a Partner in the Miami office where she concentrates her practice on defending premises liability and commercial liability claims. Her focus is on personal injury, wrongful death, negligent security, property damage, construction defect, product liability, medical and professional malpractice, product liability, and commercial litigation. Prior to joining Kennedys, Ms. Flam focused her practice on civil litigation, primarily within the field of insurance defense. Notably, her work included the defense of numerous catastrophic personal injury claims and high exposure lawsuits. Ms. Flam is a member of the American Bar Association and the Cuban American Bar Association.
Nuclear verdicts, awards exceeding $10 million, are now commonplace and heavily impact the construction industry nationwide. With claims arising from workplace accidents, design errors and omissions, and construction defect claims, significant jury awards can result.
Examples of nuclear verdicts in the construction industry include: (1) a jury verdict of $74 million resulting from an improperly paved road in Kentucky; (2) a New York construction worker's fall resulting in a $102 million verdict; and (3) an $860 million verdict resulting from the death of a Texas woman killed by a crane crash.
There are a number of reasons for the increase in nuclear verdicts including the legal strategy known as the reptile theory in which plaintiffs' attorneys tap into the primal instincts of jurors by appealing to fears that construction companies seek profits over safety. Social inflation also plays a significant role when social pressures such as financial hardship and unemployment cause jurors to lash out and punish companies in response to their own fears.
Counsel for construction clients should understand the risk of nuclear verdicts and strategies to mitigate risk through the litigation process beginning with motion practice and voir dire and continuing through the trial.
Listen as our expert panel of litigators discusses the rise of nuclear verdicts in the construction industry and challenges facing defense counsel. The panel will also examine defense strategies and offer best practices for mitigating the risk of such verdicts.
I. The rise in nuclear verdicts
A. Introduction
B. What is a nuclear verdict?
C. Historical examples
D. Notable nuclear verdicts against construction companies
E. Verdicts trending higher and settlement value inflation
II. Types of construction claims prone to nuclear verdicts
A. Workplace injuries
B. Catastrophic property damages
C. Design and construction defect cases, including building collapse or failure
D. Consequential damages due to construction delays
E. Why the construction industry is vulnerable to nuclear verdicts
F. Impacts on the construction industry
III. Legal limitations on nuclear verdicts
A. Damage limitation statutes, affidavits of merit, frivolous litigation statutes, and common law abusive litigation claims
B. Prerequisites to recovery of punitive damages
C. Constitutional limits
D. Tort reform
IV. Defending against nuclear verdicts
A. Challenges for defense attorneys: reptile theory, distrust of corporations, social inflation, litigation funding
B. Pre-trial strategies: defense theories, pleadings, dispositive motions, motions to exclude evidence, stipulations and partial settlements, mediations, high and low agreements, mock trials, and voir dire
V. Best practices to mitigate risk of nuclear verdicts
A. Planning and inspections
B. Labor and improvement of hiring practices, training, and safety
C. Recordkeeping
D. Crafting clear and enforceable contracts
E. Risk transfer and insurance
F. Avoiding juries
The panel will review these and other key considerations:
- What has been the impact of nuclear verdicts on the construction industry? What are challenges for defense counsel?
- What are notable nuclear verdicts against companies in the construction industry and what lessons can be learned by counsel and their clients?
- What defense strategies may be utilized to help mitigate the risk of a nuclear verdict?
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