How a Negligence Case Against the State of Washington Resulted in a $115 Million Verdict
In July of 2020, i a jury awarded the largest personal injury verdict ever against the state of Washington.ii This was a $115 million award to the maternal grandparents of two boys murdered by their father during visitation.iii This article will analyze the verdict: why it was awarded, and what we can learn from it.
The cause of action underlying the case first began in 2009 when the boys’ mother, Susan Powell, disappeared in Utah. The boys were then placed under the custody of their father, Josh Powell. However, he lost custody of the boys less than a year later, and in 2011, the boys were placed with their maternal grandparents, Chuck and Susan Cox. Powell fought this decision and sought to regain custody in court. At the time, he was the main suspect in the disappearance of Susan Powell.
In 2012, a judge allowed Powell supervised visitations with his children. This decision was based in part on a Department of Social and Health Services (DSHS) investigation which found no evidence Powell abused or mistreated his sons. DSHS then approved supervised visits at Powell’s house.iv During one of those visits, the supervisor allowed the boys to enter the house alone.v At that point, Powell locked the supervisor out and set fire to the home. This caused Powell’s death and the death of his two boys, who were only four and seven years old at the time of their deaths.vi The boys died of carbon monoxide poisoning.vii
In 2013, the Coxes filed a case against the Washington Department of Social and Health Services and the individual social workers supervising the visit in Pierce County.viii The case was then moved to US District Court, which found the individual social workers were immune from suit, but the state was not.ix Pierce County received the case back and was set to start trial in February of 2020.x The trial date was delayed and the jury reconvened in July of 2020.xi
At trial, plaintiffs’ counsel argued DSHS breached its duty of care by failing to follow its own policies regarding supervised visitation, safety screening, and domestic violence assessments.xii They argued since Powell was the main suspect in the death of the boys’ mother, he was an obvious domestic violence risk.xiii The defense countered there were no charges against Powell, and DSHS’ investigation cleared him.xiv
Plaintiffs asked the jury to award $5 million for every minute the two boys suffered.xv Interestingly, plaintiffs offered to settle for $3 million pretrial, which the state rejected.xvi In the end, the jury awarded a total to plaintiffs of $98 million ($115 million minus $16,491,000 due to intentional tortfeasor sole liability of the father).xvii
Although there is no written decision, we can speculate regarding the methods plaintiffs’ counsel used. They likely encouraged the jurors to feel angry at DHSH’s actions. Plaintiffs’ counsel probably urged the jurors to send a message against the state for its alleged actions. Using the Tyson & Mendes method, defense counsel could have encouraged the jurors to use their common sense—to use their judgment instead of their emotions. This could have led to a different decision as to the allocation for fault—one where the murderer was found responsible for his actions.
As this case reflects, Nuclear Verdicts™ are on the rise, and they affect both private and public organizations. Plaintiffs in this case received one of the largest personal injury verdicts in Washington’s history. To get there, plaintiffs’ counsel likely focused on the horrifying facts of the case. But using the TM Methods detailed in Bob Tyson’s book, Nuclear Verdicts™: Defending Justice for All, might have provided a different outcome for the defense. Admitting liability, encouraging reasonableness, and nudging jurors (and attorneys) to use their common sense might have mitigated the risk of such a dramatic outcome.
i This case was not published.
iii Cawley, Dave, Washington Jury Awards Parents of Susan Powell 98.5 Million, July 31, 2020, https://kslnewsradio.com/1930367/washington-jury-awards-parents-of-susan-powell-98-5-million/?
iv Judith Cox And Charles Cox, Individually And As Personal Representatives Of The Estates Of C.J.P. And B.T.P. V. State Of Washington, Department Of Social And Health Services, 20 N.W.P.I.Lit.Rpts. 138
v Cawley, supra.
xii Cox v. State of Washington, supra.
xv Cox v. State of Washington, supra