Credit: Aadarsh AeKae/


The billions are back. After a drop in 2015, which saw a top verdict of only $845 million, four verdicts in 2016 came in at more than a billion dollars each, according to the annual Top 100 Verdicts by ALM’s VerdictSearch. The largest went to a computer company that alleged a software developer had breached a settlement agreement. The jury in Hewlett-Packard v. Oracle awarded Hewlett-Packard $3.01 billion.

Jeff Thomas, a partner in the Irvine, California, office of Gibson, Dunn & Crutcher, who represented HP, said while this verdict is large by any standard, it’s especially so for what was essentially “a good old-fashioned breach-of-contract case.”

The underlying agreement had resolved a dispute over trade secrets, and Oracle breached it by announcing plans to stop issuing updates and fixes for Oracle software that runs on HP servers. The impact on HP’s highly profitable server business was devastating, Thomas said, as HP lost market share to other server providers, including IBM and Oracle itself. Thomas explained that the damages model, far from being inflated, was conservative.

“We could have included [harm to] ancillary product lines or used other ways of measuring damages,” Thomas said, “[but] we wanted to present as solid and conservative a damages estimate as possible.”

Tyler Thomas.

Tyler Thomas.

The second-highest verdict in VerdictSearch’s 2016 list, $2.64 billion, went to the family of a freshman at a state college in Nebraska who was abducted and murdered by a student who lived a few doors down in the same student housing unit. Tyler Thomas’ body was never found, and Joshua Keadle admitted that he had been with her the night she disappeared. However, Keadle was not charged in her disappearance, but at the time of trial was in prison for an unrelated sexual assault of a minor.

Vince Powers, of Powers Law Group in Lincoln, Nebraska, the attorney for the family in Estate of Thomas v. State of Nebraska, said that the day Tyler’s parents testified “was a hard day for the family and a hard day for the jury.”

Although the judge had granted a default on liability, the verdict sheet included an option to find in favor of Keadle. “The jury was out for a long time,” Powers said, but “gave much more than I asked for.”

Vincent Powers of Powers Law.

Vincent Powers.

Powers acknowledges that the award is not collectible. Even if Keadle had assets, most of the award is punitive damages, which would not go to the estate. The Nebraska state constitution provides that any fines or penalties must go to the state’s school districts, he explained.

The No. 3 verdict of 2016 was $2.54 billion, for a subsidiary of pharmaceutical giant Merck & Co. and other plaintiffs against a competing drugmaker. Idenix Pharmaceuticals v. Gilead Sciences involved infringement of patents relating to an antiviral compound used in the treatment of hepatitis C.

Merck won the 10th-largest verdict of the year, a $200 million award, and Gilead was on the losing side of that fight, as well. Gilead Sciences v. Merck & Co. involved infringement of different patents relating to the same drug compound as the Idenix case. The case was filed by Gilead as a declaratory judgment action, but Merck & Co. won on its counterclaim.

No. 4 on the Top 100, a $1.04 billion verdict, was in a bellwether trial in multidistrict litigation over metal-lined prosthetic hip implants. The plaintiffs in Metzler v. DePuy Orthopaedics were six hip-replacement patients and their spouses. Earlier in the year, a bellwether trial for five other plaintiffs in the same MDL resulted in a $502 million verdict, No. 8 on the Top 100.

Mark Lanier of Lanier Law Firm.

Mark Lanier.

In both cases, the plaintiffs’ attorney, Mark Lanier of Lanier Law Firm in Houston, argued that DePuy, a Johnson & Johnson subsidiary, had aggressively marketed the devices while failing to test them properly and concealed their risks, which included metal particles wearing off and accumulating in the surrounding tissues, where they caused chronic, debilitating pain.

Lanier said that when the defense team presented the defendants as deeply patriotic and concerned about humanity, then issues of character became admissible. He said his firm responded by entering evidence that showed “the dark side of the company,” including regulatory violations and misrepresentations by the company’s sales force.

Not until No. 5 is there a verdict below $1 billion in the Top 100. In a lawsuit primarily about misappropriation of trade secrets, a jury awarded $940 million to a software company suing a global consulting firm based in India. Epic Systems Corp. makes software for health care institutions to maintain electronic patient records. Other companies have similar products, “[but] Epic is the one used by all the blue-chip institutions, [such as] Cedars-Sinai, The Mayo Clinic and Johns Hopkins,” said the plaintiffs’ attorney Rick Richmond, managing partner of Jenner & Block’s Los Angeles office.

Tata Consultancy Services Ltd. was developing a competing product, but under strict security protocols was also testing Epic software updates for Epic customers. Tata personnel violated the protocols and downloaded thousands of Epic documents containing trade secrets. The compromised computers were later wiped of data, and the court instructed the jury that it could make an adverse inference against Tata from the data’s disappearance.

One of the biggest challenges, Richmond said, was the 10-day time limit that the judge imposed on the trial. The plaintiff alone had 50 witnesses, and the trial was bifurcated, which meant two opening statements and two closing arguments for each side. Squeezing it all in took some work.

“We narrowed the number of ‘live’ witnesses to a bare minimum,” Richmond said, “[and] we substantially trimmed down the number of excerpts from the videotaped depositions that we showed to the jury.” For about a dozen witnesses, both sides stipulated to one- or two-page deposition summaries, which Richmond read to the jury. Richmond said the judge told him he could read the summaries “with feeling, but no theater.”

Attorney Brad Caldwell, of Caldwell Cassady & Curry, won three verdicts on the list this year, with two in the top 10. All three were against Apple. The sixth-largest and the ninth-largest verdicts of the year, $626 million and $302 million, respectively, went to technology patent-holder VirnetX Inc. for infringement by several Apple products, including iPhones and iPads. Caldwell’s other Top 100 verdict for 2016 was $22 million: Cellular Communications Equipment v. Apple involved infringement of a patent relating to LTE, a wireless communication standard. Caldwell had also represented VirnetX in a 2012 trial against Apple, so there were no strangers here.

“Apple was certainly familiar with our firm, and to the extent you have a playbook, they had gotten a look at it,” he said.

So how did he manage to achieve verdicts against Apple repeatedly?

“If we had been winning based on any superficial aspect of trial strategy, Apple probably could have adapted its strategy to counter that,” Caldwell said. “I believe the verdicts are a reflection that, on a fairly deep level, our cases were solid on the merits, well prepared and ready for trial.” Despite the enormous verdict for breach of contract in the Hewlett-Packard case, intellectual property cases again dominated the Top 100 in terms of total dollars awarded. The 11 verdicts in this category totaled approximately $4.8 billion, more than a threefold increase from 2015, when the total was $1.43 billion. Eight breach-of-contract verdicts appear in the 2016 Top 100. This category comes in second, with a total of $3.67 billion, compared to just $496 million the previous year. The category in third place for 2016, wrongful death, didn’t even make the top 10 categories in 2015. The four verdicts in 2016 totaled $3.22 billion.

In fourth, products liability accounted for 16 verdicts. The total, $2.2 billion, represents a significant increase over 2015′s $625.5 million. Coming in fifth were motor-vehicle verdicts, 18 of them, totaling $700 million, down from the previous year’s $1.41 billion. Medical malpractice came in sixth place, with nine verdicts totaling $317.8 million, down from 2015′s $388 million. Placing seventh was worker/workplace negligence. The verdicts numbered just two, but they totaled $236.9 million, down slightly from $238 million in 2015. The fraud category was No. 8, with five verdicts totaling $226.9 million. Premises liability was the ninth category, with five verdicts totaling $193.9 million, down slightly from 2015′s $221 million. Rounding out the top 10 categories this year was professional negligence; its two verdicts in 2016 totaled $170 million.