Tag Archives: damages

Examining Defense Strategy for the Upcoming Landmark Opioid Trials in Ohio

By Thomas M. O’Toole, Ph.D.

Next month, the largest jury trial to date against opioid manufacturers, distributers, and sellers will take place in northeastern Ohio. The trial will involve the first case among the consolidated lawsuits brought by about approximately two thousand cities, counties, tribes, and others. In light of the recent decision in Oklahoma, in which a judge ordered Johnson & Johnson to pay $572M to the state, it is easy to understand why the stakes are significant.

These cases are particularly interesting because of how they mirror the tobacco lawsuits filed by states years ago. The brilliant tactic by the plaintiff attorneys in the tobacco litigation was to make the states the plaintiffs rather than the individual smokers. Before that, when the plaintiffs were individual smokers, it was too easy for the tobacco companies to point the finger at the user and say that it was their choice to smoke. Those kinds of appeals to personal responsibility worked when the plaintiff was an individual user, but having the states as the plaintiffs significantly limited the tobacco companies’ ability to do that. It was hard to place any critical focus on the states, which is so important in jury trials. It is no coincidence that the same has happened here. Continue reading

The Sniper Defense Episode 4 – Three Factors that Drive Damages

In episode 4 of The Sniper Defense – Podcast Playbook for Defense Attorneys, jury expert Thomas M. O’Toole, Ph.D. discusses the core factors that influence jurors’ motivation to award or not award damages in civil cases. Each factor is discussed along with mitigating factors.

The Effectiveness of the “Referendum” Strategy for Plaintiffs

Punishment

By Thomas M. O’Toole, Ph.D.

Plaintiffs’ attorneys approach case development and presentation in a multitude of both predictable and unpredictable ways, but none is more dangerous to defendants than what I call the “referendum” strategy. In short, the “referendum” strategy is a clever strategy that, when successful, allows plaintiffs to sidestep their burden of proof under the law and instead, create what is essentially a reverse burden of proof for the defense. It shifts the focus of the case to the defense and forces defendants to cope with a barrage of seemingly-disorganized attacks. In reality, what can sometimes seem like disorganization and foolish decision-making by a plaintiff’s attorney is often a very calculated attack. The results can be devastating. The “referendum” strategy is often the source of headline-grabbing or record-breaking damage awards.
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