You know that thick safety manual on the shelf that nobody has opened since the last audit? The one that says, “Safety is our number one concern?”
Plaintiffs’ lawyers love that thing.
In this edition, three topics are covered that keep employer clients awake at night, and how Treaty Oak helps employers calm down, reduce risk, and protect profit.
Here is what we are presenting today:
Topic One: Nuclear verdicts and what they mean for employers
Topic Two: How plaintiffs weaponize your safety and HR paperwork
Topic Three: What really happens in the first week after a catastrophic incident, and what to set up now
Topic One: Nuclear Verdicts Are Not Just A Trucking Problem
Start with the phrase that makes risk managers flinch: Nuclear verdict.
The United States Chamber of Commerce Institute for Legal Reform defines “nuclear verdicts” as jury verdicts of ten million dollars or more in personal injury and wrongful death cases.
In its 2024 study, the Institute reviewed more than 1,280 nuclear verdicts between 2013 and 2022 and found:
- The median nuclear verdict was about twenty-one million dollars.
- Roughly half of the verdicts were between ten and twenty million.
- Nearly one-fifth were above fifty million.
- Texas, along with California, Florida, and New York, accounted for about half of all nuclear verdicts even though those states have roughly one-third of the United States population.
You do not need to run a Landman-sized refinery to feel those numbers.
Verdicts at that level can drive up insurance costs, shrink coverage, and push some companies to settle weak claims just to avoid the risk of one jury who has had a rough week. Verdicts of that size can also affect the cost and availability of insurance and distort the civil justice system for everyone.
So what changed?
Commentary from defense lawyers and insurers points to a combination of factors:
- Jurors who are more skeptical of business and more comfortable punishing perceived bad behavior.
- Plaintiffs’ lawyers who frame cases around community safety instead of individual harm.
- Big money in sports, technology, and finance that makes eight-figure numbers feel almost routine.
That framing has a name in the trial world: reptile theory.
Topic Two: How Your Own Paperwork Becomes a Prop for Reptile Tactics
This is going to be said gently, and then not so gently.
Safety policies and HR manuals are either quietly protecting the business, or quietly feeding the alligator.
Reptile theory is a trial strategy where plaintiffs’ lawyers appeal to jurors’ survival instincts by casting the defendant as a threat to community safety, not just someone who may have made a mistake. Winston & Strawn breaks down this strategy and how defense teams respond in its article on combating reptilian tactics.
The basic move looks like this:
- Create broad safety rules that sound obvious and noble.
- Force witnesses to agree those rules describe your company.
- Argue the company broke those rules and therefore put everyone at risk.
- Tell the jury the only way to protect the community is to return a very large number.
Courts have described this tactic as urging juries to base verdicts on protecting the community rather than on the facts and the actual legal standard. Recent decisions have limited reptile style arguments at trial, which is also discussed in Winston & Strawn’s overview of reptilian tactics.
That is the courtroom side. Here is where paperwork comes in.
What the law actually says about negligence
Under the Texas Pattern Jury Charges, negligence means failing to use ordinary care, which is what a person of ordinary prudence would do in the same or similar circumstances. Ordinary care is the care that an ordinarily prudent person would use in those circumstances. See the Texas Pattern Jury Charges excerpt on Negligence and Ordinary Care.
That standard is human. It allows for judgment calls, tradeoffs, and the fact that business is messy.
Reptile tactics try to swap that standard out and replace it with the most dramatic line in a manual.
The line that gets employers into trouble
In real trials, plaintiffs lawyers look at policy manuals and training materials, then spend hours on questions like
- “Your safety manual says ‘Safety is our number one priority,’ right?”
- “Your handbook says you will ensure contractor compliance with all safety rules, correct?”
- “Your values statement says your company never compromises on safety, yes?”
Defense commentary notes that plaintiffs use these generic safety rules to create a higher standard than the law requires, then argue the defendant failed that self imposed standard and endangered the whole community. Winston & Strawn explains how these tactics play out in practice in its article on combating reptilian tactics.
So instead of arguing whether a supervisor acted with ordinary care on a difficult day, the case becomes whether the company lived up to the words in its handbook.
Snarky translation: If a policy says the company never compromises on safety, plaintiffs’ counsel will spend the next three years hunting for one email that makes that sentence look untrue.
What we tell clients when we present this topic
When employers, especially HR leaders and operations managers, are walked through this, manuals come out and three blunt questions are asked:
- Does this sentence describe what you actually do on a Tuesday afternoon?
- If a jury hears this sentence read out loud, will it sound like a promise of perfection?
- Are we volunteering to take responsibility for things the law does not require us to control?
Here is the good news: safety can be communicated as a serious priority without turning policies into a script for the other side.
Language like the following is much kinder to your future self:
- Safety is part of everything we do
- Safety is among our highest priorities
- We work to reduce risk in light of the circumstances
- We expect our contractors to maintain effective safety programs, and we coordinate with them as appropriate
These phrases line up with the ordinary care standard reflected in the Texas Pattern Jury Charges excerpt on Negligence and Ordinary Care, rather than a fantasy world where no mistake ever occurs.
They also give counsel more room to explain the real world tradeoffs required to keep a business open and people employed.
Topic Three: We lay out what actually happens when something goes very wrong
Imagine a major incident at a site. Not a twisted ankle. The kind of event where someone calls local news.
Within hours and days, the following may appear:
- Safety regulators
- Environmental agencies
- Fire marshals and other local officials
- Possibly the United States Chemical Safety and Hazard Investigation Board if chemicals are involved
- Plaintiffs’ lawyers filing suit and asking a court to lock down the scene
The U.S. Chemical Safety and Hazard Investigation Board investigates the root causes of major chemical incidents at fixed industrial facilities, with a mandate to improve safety for workers, communities, and the environment. More information is available through the Chemical Safety Board.
If operations fall under OSHA process safety rules or the EPA risk management program, regulatory duties already exist related to accident prevention and incident investigation. OSHA maintains incident and accident investigation information through its accident search database.
At the same time:
- Your own managers are trying to respond to the emergency and stabilize the site
- Workers and families want information
- Reporters are calling your communications team
- Someone on your leadership team is wondering what this means for the business as a whole
Many employers assume the insurance carrier will orchestrate all of this. In reality, insurers are one piece among many, and they move at their own speed and for their own reasons.
Recent investigations involving Texas incidents show regulators can be on site quickly, often while the incident is still unfolding. Employers should expect requests for access, documents, and employee interviews, as reflected in Chemical Safety Board investigation reports.
That is a lot of pressure on people who signed up to run a business, not run a crisis.
What Treaty Oak covers with clients before disaster day
When presenting this part to business owners and HR teams, four practical questions are covered:
- Who is allowed to speak for the company at the site and with regulators?
- How will we make sure emergency repairs do not look like we destroyed evidence later?
- What will we say publicly that is accurate, humane, and does not admit legal liability?
- How will we document what happened in a way that satisfies regulators without handing plaintiffs a playbook?
The law in this area is detailed and varies by industry, but a few themes are consistent in commentary from regulators and defense counsel:
- Employers are expected to cooperate in investigations and to provide accurate information, even in the early hours.
- Communications about an incident should acknowledge what is known, express appropriate concern, and avoid speculation about fault or cause
- Internal investigations need to be structured carefully so that regulatory requirements are met and privileged legal analysis stays protected, consistent with court decisions that look at the true purpose of an investigation when deciding whether attorney-client privilege applies.
When we show employers how all of that plays out in the first week, no one finds it fun. They do, however, feel a lot more in control once there is a written playbook and the key people know their roles.
How we help employers use these topics instead of being used by them
These topics are not presented to turn business owners into amateur litigators. Employers already have a job.
Our job is to:
- Translate the messy overlap between employment law, safety rules, and catastrophic incident practice into something business owners and HR managers can actually use.
- Help you rewrite safety and HR manuals so they reflect real life and the legal standard of ordinary care, instead of slogan level promises that sound nice until they are read to a jury.
- Work with your leadership team to build a simple but realistic incident response and communication plan that fits your industry and risk level.
- Coordinate with trial counsel when incidents do occur so that decisions made in the first days support your longer term litigation and regulatory strategy.