Avoiding Nuclear Verdicts Through Motions In Limine

By LCA Senior Fellow Edward R. Hugo

There are many potential causes of nuclear verdicts, including anchoring jurors to inflated damages at the outset of trial and improper jury de-selection.  In mini-openings and voir dire, plaintiff’s counsel can introduce exorbitant numbers to offend people who have common sense and create an un-passable test regarding what is “reasonable” for damages that have not been proven.[1]  This attempt to remove practical jurors for cause is violates the law which requires that jurors “must use [their] judgment to decide a reasonable amount based on the evidence and [their] common sense”. CACI No. 3921 (emphasis added).

The effects of anchoring in mini-opening statements and voir dire are real.  Research has shown that when attorneys throw out large amounts, they drive up a potential verdict by desensitizing the prospective jurors to huge numbers and suggesting those huge numbers are “reasonable” amounts for a verdict.  (See, e.g., J. Campbell et al., Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments, 101 Iowa L. Rev. (2016); see also Mollie W. Marti & Roselle L. Wissler, Be Careful What You Ask For: Anchoring Effects in Personal Injury Damage Awards, 6 J. EXPERIMENTAL PSYCHOL. APPLIED 91, 91-103 (2000); Gretchen B. Chapman & Brian H. Bornstein, The More You Ask For, the More You Get: Anchoring in Personal Injury Verdicts, 10 APPLIED COGNITIVE PSYCHOL. 519 (1996); Verlin B. Hinsz & Kristin E. Indahl, Assimilating to Anchors for Damage Awards in a Mock Civil Trial, 25 J. APPLIED SOC. PSYCHOL. 991 (1995); John Malouff & Nicola A. Schutte, Shaping Juror Attitudes: Effects of Requesting Different Damage Amounts in Personal Injury Trials, 129 J. SOC. PSYCHOL. 491(1989); Edward (Ted) L. Sanders, et al., Reptiles, Picassos, and Stealth Bombers: Combating Inflate Non-Economic Tort Damages, MUNICIPAL LAWYER: THE JOURNAL OF LOCAL GOVERNMENT LAW, pp. 19-23 (Vol. 60, No. 6, Nov./Dec. 2019).) Anchoring by counsel is inherently unfair and prejudicial during all phases of trial, especially during voir dire when no evidence has been presented and the jurors’ only information is plaintiffs’ counsel’s argumentative suggestion regarding the proper order of magnitude of damages.

Anchoring must be addressed in pretrial motions before the potential jurors are contaminated with unreasonable claims for damages in mini-openings, voir dire or opening statements.  As an example, in Patrick W. Dennis v. Air and Liquid Systems Corporation, et al., Case No. 2:19-cv-09343-GW-KS, United States District Court for the Central District of California, I filed various Motions In Limine, including #10, TO PECLUDE REFERENCE TO TENS OF MILLIONS (OR MORE) OR SPECIFIED DAMAGES AMOUNTS.  On September 15, 2023, the Court issued the following tentative ruling:

Initially, as to voir dire, the Court agrees that referencing that “tens of millions of dollars” are potentially at stake risks prejudicing the jury by anchoring them to such sums.  Likewise, as an opening statement is simply to orient the jury as to what the expected evidence will be, a reference to tens of millions of dollars is argumentative and will not be permitted.  The Court is therefore inclined to grant Defendants’ request as to the voir dire and opening statement.[2]

The psychological effects of anchoring are real and prejudicial, and defense counsel must be proactive in precluding such tactics.



[1] For example, this is an asbestos plaintiffs’ attorney’s proposed mini-opening statement in a wrongful death case:

Good morning ladies and gentlemen, my name is [Plaintiffs' Counsel] and I am an attorney with [Plaintiffs' Law Firm]. We represent the people bringing the lawsuit in this case.

Our clients' father was diagnosed with a cancer called mesothelioma in 2019, and died of mesothelioma shortly after his diagnosis. Our clients' father worked as a child in the Los Angeles area in the family business, with his father and brothers, maintaining and renovating two hundred apartments, using materials that included joint compounds, to seal up and smooth joints between sheets of drywall that make up walls. Our clients' grandfather was thrifty so he would purchase whatever the cheapest joint compounds were for sale. Because of this, the boys worked with six different joint compounds.

One of the brands of Joint Compound was made by [} the Defendant in this case. These joint compounds and other building materials they worked with contained asbestos.

Mesothelioma is a cancer, and is caused by exposure to asbestos. Asbestos is a naturally occurring mineral that was added to construction products. The evidence will be that the father's exposures to all these asbestos-containing materials, taken together, caused his deadly cancer.

Prior to his diagnosis, our clients' father worked in Northern California as a chiropractor. He was sixty-seven years old when he passed. Prior to his death he had various medical issues such as being severely obeseand having two heart attacks. These medical conditions were being treated by his doctors.

At the end of the case the jury will be asked to provide money for the losses caused by [the Defendant]. There are two types of damages in a case like this. One type is called economic damages and is to pay for such things like lost wages and medical expenses. Those economic damages are not in dispute in this case. The other type is to payfor non-economic or non-tangible damages.

This would be for the loss of [the Plaintiff's’ love, his companionship, his comfort, his care, his assistance, his protection, his affection, his society, and his moral support.  Essentially, the loss of everything that makes us human and what makes us enjoy life.  We are going to ask you to be open to the possibility that these non-tangible damages are worth over 34 million dollars. Wennerholm vs. DAP Products, Inc., JCCP 4674, Los Angeles Superior Court, Case No. 19STCV15874 (1/31/23), emphasis added.

[2] Tentative Rulings on Motions in Limine, Patrick W. Dennis et al. v. Air and Liquid Systems Corporation, et al., Case No. 2:19-cv-09343-GW-(KSx), United States District Court for the Central District of California, Sept. 15, 2023 (ECF No. 462).  The tentative ruling became the order of the Court after Oral Argument on September 18, 2023.  See; Civil Minutes – General, Proceedings: Pretrial Conference, Patrick W. Dennis et al. v. Air and Liquid Systems Corporation et al., Case No. 2:19-cv-09343-GW (KSx), United States District Court for the Central District of California, Sept. 18, 2023 (ECF No. 463).


Edward R. Hugo is a trial attorney, appellate lawyer, litigator, and litigation manager for cases involving products and premises liability, toxic torts including asbestos and talc, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He has also been retained as an expert witness and testified in trials, arbitrations, and depositions regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues. Ed earned his J.D. degree from the University of California, Hastings College of the Law, in 1986. He is a Certified Civil Trial Specialist, accredited by the State Bar of California; a “Board Certified Civil Trial Advocate” and a “Board Certified Civil Pretrial Practice Advocate” by the National Board of Trial Advocacy; a Charter Member of the Institute of Trial Presentation; named a “Super Lawyer” in Northern California for eighteen consecutive years; and is AV® Preeminent™ Peer-Review Rated by Martindale-Hubbell.  He is licensed in California, Colorado, Hawaii, Oregon and Washington. Ed is a Charter Senior Fellow of the Litigation Counsel of America.