Stipulation seen as potential boon to plaintiffs in future Amazon cases

BOSTON — A Middlesex County jury awarded a retired realtor $56 million after an Amazon delivery van crossed the center line and struck his vehicle in Portsmouth, New Hampshire, leaving him with a permanent brain injury, an amputated leg and the need for lifelong care.

Five days before trial, Amazon reversed course and stipulated to liability for its Delivery Service Partner and driver, leaving only damages for the jury to decide — a rare move plaintiffs’ attorneys say could reshape litigation strategy nationwide,

The verdict is believed to be the largest ever against Amazon in a personal injury case and the largest plaintiff’s verdict in Massachusetts history.

Defense and plaintiffs’ attorneys are split on how much precedential weight the stipulation will carry in future cases, given that agency/control determinations are typically case-specific.

First, Boston attorneys Marc L. Breakstone and J. Tucker Merrigan are grateful for the favorable result they were recently able to achieve for a deserving client.

On July 22, a Middlesex Superior Court jury awarded Malcolm Carnwath, a 78-year-old retired realtor, $56 million for catastrophic injuries he suffered when an Amazon delivery van driver fell asleep at the wheel, crossed the center line, and collided with Carnwath’s vehicle in Portsmouth, New Hampshire, on Nov. 16, 2024.

Carnwath was left with a permanent brain injury from a series of ischemic strokes following cardiac arrest, and his left leg had to be amputated below the knee. He underwent 12 major surgeries and procedures and spent approximately six months in the hospital. He will need around-the-clock care the rest of his life.

It is believed to be the largest verdict ever levied against Amazon in a personal injury case and the largest single-plaintiff, non-punitive verdict in the state’s history, according to Breakstone.

But Breakstone and Merrigan are also heartened to know that the verdict may be a boon for lawyers seeking compensation for other deserving victims — and could even alter the way the world’s largest retailer operates.

Throughout the discovery process, Amazon fiercely contested whether it could be held liable for the actions of co-defendant Agora Logistics LLC of Boxford, part of its network of third-party “Delivery Service Partners,” and the driver Agora employed.

But on the eve of trial, Amazon did an about face. Five days before the trial was set to begin, Amazon agreed to a stipulation accepting liability, leaving as the only issue at trial a determination of the damages owed to Carnwath.

Claims against Amazon for injuries allegedly caused by its drivers have rarely reached trial. In 2023, a South Carolina jury awarded $44.6 million to a plaintiff, Shannon Shaw, who suffered a traumatic brain injury and severe orthopedic injuries when an Amazon delivery driver turned left into his motorcycle’s path.

The following August, a Georgia jury awarded $16.2 million to the plaintiff in Bradfield v. Amazon Logistics, et al., involving an 8-year-old boy who had been run over by an Amazon delivery van and suffered serious injuries to his pelvis and leg. The jury apportioned 85 percent of the responsibility for those injuries to Amazon and only 10 percent to its Delivery Service Partner.

But in neither of those cases did Amazon make a concession like the one it made in Deragon v. Amazon Logistics, Inc., et al. (Kerrie H. Deragon is Carnwath’s legal guardian.)

Amazon did not directly respond to questions about its decision-making process. Instead, it provided a statement, which read: “This was a tragic accident, and our thoughts remain with Mr. Carnwath. We respect the judicial process.”

Merrigan said he surmised that Amazon agreed to the stipulation to protect it from a “nuclear verdict.”

When he and Breakstone evaluated the case in focus groups, they found that a jury might have rendered a much larger verdict had the company tried to defend the agency issue at trial, according to Merrigan.

“Because it’s incomprehensible that an Amazon driver, wearing an Amazon vest and delivering Amazon packages in a vehicle owned by Amazon to Amazon customers, that they could walk into a courtroom with a straight face and say, ‘We have no responsibility,’” he said.

Now, the question is whether its admission in the Carnwath case will come back to haunt Amazon in future cases, and if so to what extent.

Impact debated

Amazon is hardly the only major corporation to build a vast network of subcontractors to insulate itself from liability and the costs of the risks inherent in running its business, Merrigan noted.

“This is the first blink on this issue that they’ve had, and it has taken the litigation defense strategy of one of the world’s biggest companies and turned that strategy on its head,” he said.

Other plaintiffs’ lawyers have seen something potentially useful in the stipulation filed in the Carnwath case, according to Merrigan.

“I’ve already been contacted by lawyers all over the country who are seeking to use that [stipulation] as a strength in their own cases,” he said.

Just how useful it will prove to be is a matter of some debate.

To Breakstone, it is a game changer.

The significance of the stipulation is that it could be admissible in every one of the thousands of pending injury claims against Amazon, at least when the identical Delivery Service Partner agreements are in effect, he said.

Breakstone imagined the questions that would be asked of every company representative at depositions taken under Federal Rule of Civil Procedure 30(b)(6): “Did Amazon Logistics stipulate to full legal responsibility for the negligence of its DSP and DSP driver in Middlesex County on July 21, 2026?” “Is the DSP agreement in the Middlesex case the same as the DSP agreement in this case?” “Is the Amazon operations manual that the DSP was obliged to follow the same in the Middlesex case as this case?”

The Amazon official will have to answer “yes” to all those questions, Breakstone said.

“That will be the end of the discussion on that issue,” he said. “That is significant.”

Chad P. Brouillard of Woburn, president of the Massachusetts Defense Lawyers Association, is less sure.

“An agency determination is always very case and fact specific,” he said. “I can’t see how a generalized stipulation in one case, absent some additional facts or circumstances, would have any effect going forward.”

A party might have agreed to a stipulation for a variety of reasons, including strategic ones, he added.

The stipulation may not bind Amazon in future cases, agreed Milton plaintiffs’ attorney Dino M. Colucci. But he still sees what unfolded in the Carnwath case as potentially significant for the plaintiffs’ bar.

“This is really a roadmap for discovery for any future cases,” Colucci said. “In other words, they must have done a great job in discovery in finding out that basically Amazon controls, to a large degree, their Delivery Service Partners.”

Colucci pointed to discoverable facts such as route assignments, quotas and telematics — a device in the delivery vehicles that tracks and reports back to Amazon the driver’s speed, location, fuel consumption and driving habits.

“The control question must have been answered sufficiently such that Amazon’s lawyers thought, ‘We’re not going to put this before a jury. It doesn’t make sense,’” Colucci said.

Risks remain hidden

In the final weeks before trial, one of the skirmishes between the parties in Carnwath’s case was whether any reference should be made at trial to the Netradyne Driver-i camera system, which provides Amazon real-time information about whether a driver might be drowsy.

Amazon argued that the availability or unavailability of Netradyne drowsy driving alerts for Amazon-branded last mile delivery vans, including the one that crashed into Carnwath’s vehicle, was irrelevant to the plaintiff’s vicarious liability claims against Amazon.

The plaintiff countered that the evidence was being offered for the “limited and entirely proper purpose” of proving the degree of operational control over the driver, which went to the heart of the vicarious liability claim.

The record also included a report from plaintiff’s expert Dr. Martin Moore-Ede. In one section of his report, Moore-Ede described the “broad international consensus” that has emerged over the past 15 years across industries that operate around the clock that it is paramount to manage and reduce the risk of employee fatigue, including by using a “systematic, data-informed process commonly referred to as a Fatigue Risk Management System.”

“Even in the absence of regulatory mandates or guidelines, industry associations and many corporations with extended-hour operations have incorporated FRMS and/or critical components of FRMS into their recommendations, industry standards, and corporate policies to manage the safety and health effects of the inherent fatigue risk on their employees and/or constituents working extended hours and/or night shifts,” Moore-Ede wrote.

He also stressed the importance of companies whose employees perform “safety-critical tasks,” such as driving, to train those employees “on the basic physiology of sleep, circadian rhythms, and alertness, as well as their practical application to recognizing, managing, and mitigating fatigue-related risk in real-world operational settings.”

Such training is “a fundamental component of effective fatigue risk management, as it equips employees with the knowledge necessary to identify warning signs of fatigue, including lapses in attention and microsleeps, and to take appropriate countermeasures,” Moore-Ede wrote.

While Merrigan considers the stipulation in the Carnwath case “a real step forward,” he noted it also comes with a cost.

“When liability is conceded, the safety record goes untested, and the evidence we developed never reached the jury,” he said. “If this becomes the standard playbook, the public never learns about the business practices that put them at risk.”

Colucci wondered if the Carnwath case might also prompt Amazon to rewrite its contracts with its delivery partners to make its level of control less overt.

“If they have contracts with different terms, they can loosen their grip on their Delivery Service Partners, or at least ostensibly loosen their grip by rewriting some of their contracts. Maybe that gives them a little bit of shelter,” he said. “If I were advising them, I might think to try to do that, to try to give them a little bit of cover, because they certainly didn’t have any cover here.”

Perfect storm

In addition to what is believed to be a first-of-its-kind stipulation that Amazon entered, the Carnwath case will be memorable for other reasons, Breakstone said.

For one, it reminded Breakstone of why he is such a fan of panel voir dire. In the Carnwath case, the process resulted in 27 for-cause strikes by Amazon of potential jurors who indicated that they held such strong views about Amazon they could not be fair.

“Even though this process resulted in removal of 45 percent of the venire members, it was a fair and efficient process that resulted in a more level playing field,” Breakstone said.

It took only three hours to seat the jury, he added.

“Judge [Sarah Weyland] Ellis and the court staff managed the process with the efficiency of a Swiss time piece,” he said.

He was also grateful that Ellis agreed that Carnwath’s age and the severity of his injuries warranted accelerating discovery and getting the case scheduled for trial within 14 months of the date of filing and within 18 months of the date of the accident.

Of course, the result on behalf of “one of the most heroic figures I’ve ever represented, known or read about” will be memorable, too, Breakstone said.

“This case was a perfect storm: aggravated liability, unthinkable damage and harm to a deserving plaintiff, and pockets as deep as they come,” he said.