Insurers and defendants in Pennsylvania may be facing a new hurdle at trial: Anchoring. House Bill No. 1913, a newly proposed piece of legislation, seeks to permit plaintiffs’ attorneys to suggest specific dollar amounts for noneconomic damages to a jury.

This practice, often referred to as “anchoring,” relies on a well-documented psychological effect in which jurors place disproportionate weight on the first number or value presented to them, and then make only minimal adjustments from that initial figure. As a result, the anchor tends to shape their perception of a fair award, even when jurors are instructed that such numbers are merely argument and not evidence.

The relevant portion of the Bill, § 8320.0 – Permissible Argument for Damages, provides as follows:

(a) In any civil action tried before a judge, jury, or other tribunal, an attorney may, during closing argument:

1. Specifically argue, in lump sums or by mathematical formula, the amount the attorney deems to be an appropriate award for all past and future economic or noneconomic damages, or both; and

2. On behalf of the defendant, argue that an award of any lesser amount is appropriate if liability is found.

(b) A party may not argue a sum under subsection (a) unless that party first discloses to the court and opposing counsel, prior to closing arguments, that such a damages argument will be made.

(c) In a civil jury trial, the court shall instruct the jury that the sums or mathematical formulas presented by counsel are not evidence, but rather argument only, and the determination of damages, if any, rests solely with the jury.

If enacted, House Bill No. 1913 would place defendants in a difficult strategic position. Once a plaintiff introduces an anchor, the defense must decide whether to respond with its own numerical suggestion or risk leaving the plaintiff’s anchor unchallenged.

Pennsylvania courts have already confronted similar issues. In Mohnkern v. Gould, 225 A.3d 1154 (Pa. Super. 2019), the defendant rear-ended the plaintiff while at a light. The plaintiff filed several motions in limine seeking to prevent Plaintiff from identifying a specific dollar amount of noneconomic damages to the jury. The court overruled the motions.

Pennsylvania is not the first jurisdiction to confront anchoring. Virginia faced the same issue in 2012 when the Virginia Supreme Court decided Wakole v. Barber, 283 Va. 488, 722 S.E.2d 238 (Va. 2012). The Court held that plaintiffs may place a numerical value on each element of damages, including noneconomic damages, so long as there is evidence to support the requested amount. However, Virginia imposed two important limitations on the practice:

(1) the amount suggested must be presented as a lump sum, not a per diem calculation, and (2) the requested amount must not exceed the ad damnum (the total amount demanded in the complaint).

Following this decision, plaintiffs’ attorneys in Virginia began requesting extremely high verdicts, itemizing each element of damages during closing arguments. While this initially created challenges for defense counsel, Virginia defense attorneys ultimately adapted and developed effecting counter strategies.

So, how do insurers and defendants effectively combat this “anchoring” tactic? The most effective strategy is to offer a counter anchor, a well-supported, reasonable alternative damages figure that helps bring the jury “back to reality.” A 2020 national study conducted by Second Jury Consulting, involving thousands of mock jurors, examined damages, “nuclear verdicts,” and defense strategies. Using a motor vehicle accident case as an example, the study found that average damages awards decreased when the defense provided an alternative damages figure, compared to when the defense offered no alternative number at all.

Other research supports this conclusion indeed, a carefully reasoned and evidence-based counter anchor can meaningfully influence the jury’s deliberations. To be effective, a counter anchor should: (1) be supported by the defense’s expert testimony or other trial evidence, (2) avoid appearing dismissive or overly low relative to the claimed injury, and (3) highlight the excessive or unrealistic nature of the plaintiff’s requested damages. By thoughtfully presenting a grounded, proportional figure, defense counsel can guide jurors toward a fair outcome and minimize the risk of an inflated or “nuclear” verdict. Although there remains a possibility that juries could “split the difference” between the competing anchors, a well-crafted counter argument remains the most effective tool to neutralize this plaintiff-oriented strategy.

In summary, House Bill No. 1913 represents a significant proposed shift in Pennsylvania trial practice. Should it pass, defense counsel will need to adapt their strategies accordingly. Our office will continue to monitor developments related to this legislation.

Any questions regarding this matter can be directed to Amanda Finney at (571) 470-0394 or at afinney@tthlaw.com or Zoe Wilson at (717) 255-7231 or at zwilson@tthlaw.com.