Andrew Berger: Safeguard Indiana’s economy through legal reform

This article appeared in the IBJ on 5/15/26 as part of their Forefront Article Series. It was written by Andrew Berger IMA President and CEO.

Andrew Berger

For decades, Indiana’s manufacturing sector has served as the backbone of our state’s economy, providing high-wage jobs and driving innovation.

However, a growing threat in our courtrooms is beginning to overshadow the progress we have made. To maintain our competitive edge, Indiana must pursue bold civil law reform.

At the heart of our concern is the radical transformation of public nuisance law.

Historically, this doctrine was a narrow tool used to address localized interferences with public rights, such as blocking a public road or polluting a shared waterway.

Today, however, we are seeing aggressive attempts to “stretch” this doctrine into a catch-all cause of action for complex social issues that should be handled by the legislature, not the judiciary.

From climate change litigation to cases involving the lawful sale of regulated products, trial attorneys are increasingly using public nuisance to bypass traditional requirements of proof and causation.

We see this in pending cases across the country, such as the climate litigation in Boulder, Colorado, where local governments seek to hold manufacturers liable for global environmental shifts (Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy).

Similarly, in Hawaii, the city and county of Honolulu are pursuing fossil fuel companies for “failure to warn” about climate impacts (City & County of Honolulu v. Sunoco LP).

In California, the state and environmental groups have sued major petrochemical manufacturers, alleging that plastic production constitutes a public nuisance due to the costs of waste management (People v. Exxon Mobil Corp.).

Indiana manufacturers are exposed. Consistent, common-sense regulation is a major benefit to manufacturers in our state. This “regulation by litigation” strategy could very well take away a major economic advantage.

Compounding this issue is the alarming trend of nuclear verdicts, or jury awards exceeding $10 million.

According to data from the U.S. Chamber of Commerce’s Institute for Legal Reform, these verdicts are increasing in both frequency and magnitude.

Between 2010 and 2019, the median nuclear verdict rose by 27.5%, significantly outpacing inflation. In many instances, these awards are driven by “non-economic” damages that are grossly disproportionate to any actual economic loss.

For an Indiana manufacturer, a single nuclear verdict can be a death penalty, but the damage begins long before a gavel falls.

The sheer unpredictability of these awards has thrown the commercial insurance market into turmoil.

As the rising cost of insurance claims due to litigation takes hold, Hoosier businesses are seeing double-digit increases in premiums. Insurers, unable to quantify the risk of a $50million or $100 million verdict, are reducing their capacity or exiting certain markets entirely.

This leaves manufacturers with fewer options, higher deductibles and less capital to reinvest in their workforce.

These awards are not just numbers on a balance sheet; they represent capital diverted away from safety research, worker training and facility expansion.

When insurance becomes unaffordable or unavailable, the very survival of small- and mid-sized industrial shops is put at risk.

Indiana has long been a leader in creating a pro-business environment, but our civil justice ranking is at risk.

We must join the growing number of states that have enacted common-sense limits on the public nuisance doctrine and established reasonable caps on non-economic damages to prevent runaway jury awards.

Manufacturers need clear rules and a stable legal environment to continue doing what we do best: building the future.