The layperson’s expectation is that products work as designed, safely, and without putting the public at risk. But while that may sound perfectly reasonable in a vacuum, when applied to the legal arena, these expectations put defendants at risk right out of the gate.
In particular, these prevailing mindsets are exploited all too easily. Where matters of human safety are concerned, plaintiffs’ counsel are able to enlist a common set of thematic arguments, many of which adhere to the “reptile approach"—whereby counsel suggests to jurors that the defendant poses a danger not only to them but also to their loved ones and their communities at large.
Before we address how to counter defense weaknesses in health and safety product liability cases, it benefits us first to understand why the weaknesses exist. By examining the psychology that gives plaintiffs such advantages and the top ways plaintiffs’ counsel goes on to leverage them, we can lay an informed groundwork for overcoming these substantial obstacles.
Why Do These Cases Carry Inherent Defense Weaknesses?
Plaintiffs Are Often Sympathetic
When dealing with product liability, and especially with medical and safety products, someone has usually been (or claims to be) injured, infected, disabled, or killed. Plaintiffs are people that jurors can relate to, potentially sympathize with, and maybe even empathize with. The harm that befell them seems unfair and tragic. It may be readily apparent that the plaintiffs’ lives have been altered dramatically, often permanently. Under these circumstances, jurors are then being asked to critically and impartially examine whether the defendants did something wrong.
But when jurors are looking at a sympathetic plaintiff, they often feel the need to find someone to blame. Many would rather give the plaintiff the benefit of the doubt to avoid the possibility that they would be letting someone—especially a “big corporation”—off the hook. Sympathy makes it difficult to say no, and jurors may award damages despite not being convinced of the defendant’s liability. We have seen jurors work backward through verdict sheets, selecting whatever responses are required to warrant the damages they want to award. They may not be sold on causation, but they feel that the plaintiff deserves money; how can they sit there and know the injured and their family will walk away empty-handed?
Jurors Have Limited Knowledge of Scientific and Statistical Concepts
The nature of health and safety products and their development means jurors are usually presented with some amount of complex science. Unfortunately, numerous studies, along with our own considerable experience, have demonstrated that many jurors incorrectly evaluate causation, fail to understand the proper scientific methodology, and “cancel out” expert testimony if they are met with competing views. Additionally, it is often difficult for jurors to understand statistical modeling and apply it to the cases and issues at hand.
Since the defendant’s case often relies more on hard science than the plaintiff’s case, these shortcomings present a disadvantage. Ultimately, between the complex subject matter being presented and the fear that the defendant might get away with something, jurors may not put sufficient effort into understanding your evidence and arguments. Plaintiff counsel has the advantage of painting with broad brush strokes. They can draw quick and dirty connections between a certain product and the plaintiff’s harm without bogging jurors down with technical details. Conversely, the onus is on the defense to paint with a finer brush. But these vital details then have to be understood, remembered, and repeated during deliberations.
Jurors Do Not Want to Feel Vulnerable
If there is one overarching reason that cases involving human health and safety are easy for plaintiffs to exploit, it is that jurors (people) do not like to feel vulnerable. They do not want to think about living in a world where incidents like these happen; the perceived threat is too real.
A defense attorney needs to remember that the products in these fields inexorably evoke the concepts of health and mortality—and these are uncomfortable for many people. These feelings of vulnerability can manifest themselves as denial and lead to unachievable standards, whereby jurors’ expectations for product safety do not, and cannot, match reality. There is even a name for this phenomenon: “denial of vulnerability,” the tendency to reject or deny information perceived as threatening to the self.
In other words, jurors do not want to feel vulnerable when using health and safety products, so they are inclined to reject anything suggesting it is possible for a “bad” outcome to occur with their normal use. Instead, they conclude, the product was probably defective; it was probably poorly designed, tested, or manufactured. This perspective is much more comfortable. If they can blame inadequate standards or faulty product design and testing, they can continue to believe that these kinds of products are essentially guaranteed to be safe. They do not have to think about the potential for tragic mistakes in using a product or the statistical possibility that something like this could happen to any of us.
Fears like these have always been an issue, yet they are also trending in a worrying direction. As society has fostered “safetyism” in recent decades and become increasingly intolerant to risk of any kind—both physical and emotional—jurors’ expectations have skyrocketed. Add in jurors’ limited ability to understand scientific and statistical evidence, and you will find that they begin to think less about the case facts and more about whether letting the defendant off could be harmful to themselves or someone they care about.
Common (and Effective) Plaintiff Themes
Now that we have covered how jurors tend to think about health and safety product liability cases, let us examine the four common plaintiff themes that can cause major trouble for the defense.
1. You Favored Profits Over People
This argument tends to be the crux of the plaintiff narrative. And rightly so—health and safety products cases offer plentiful opportunities for plaintiffs to blur the lines of business and financial decisions. Plaintiffs will suggest to jurors that money is the driving factor behind the defendant’s actions, not the safety of its consumers. They can also point to less-than-ideal company documents (there always seem to be a few) that discuss the financial rationale behind a decision or express an employee’s concerns. This includes financial analyses, which can be presented as “proof” that the company decided for or against a certain action based on the costs. Such documents are taken out of context to suggest that it made reckless decisions to boost its bottom line, further fueling the “Profits Over People” narrative.
Financial considerations are a natural part of running a business, but this is where jurors with anti-corporate biases and outsized safety expectations are most dangerous; as some will undoubtedly reason, “Money shouldn’t be a consideration at all—it’s about lives and safety!”
Potential Weak Point: Testing Process
With many jurors’ exceedingly high expectations for health and safety products and the companies that make or design them, any perceived lack of testing (including perceptions based on a misunderstanding of proper testing methods) looks to them like an attempt to avoid costs and maximize sales.
At times it can feel like there is no way to win. Take medical devices: according to the 510K process of the Food and Drug Administration (FDA), by which many medical devices are approved, a company is not required to perform clinical tests, which necessitate that the device is implanted in live people, because of the device’s similarity to an existing approved product. But the absence of clinical testing of this specific device makes many jurors uncomfortable; they expect that this exact device has been tested and shown to be safe before it is ever implanted in a human (ironically, ignoring the fact that clinical testing itself would require human implantation). Despite a product’s similarities to previously approved products, the case is put in terms of, “My grandma could have something implanted in her that’s never been proven safe in humans?”
So, the defense may have great testing, in line with the FDA’s process, and still find itself among unhappy jurors.
2. You Knew and Did Nothing
Plaintiffs will lead jurors to believe that people in the company were aware, or should have been aware, of an issue with the product but did not take sufficient action. Beyond arguing negligence, they may suggest that the defendant actively concealed problems or purposely delayed its response. This often harkens back to “Profits Over People”—as they will frame it, in the company’s effort to limit expenses and/or its fear that sales would be damaged should the public discover the product’s dangers, it failed to take action and withheld key information from consumers.
After all, if there was any reason to believe the product was unsafe, why was there no recall or a specific warning?
Common Weak Point: Product Claims and Advertisements
Suddenly, a defendant’s ads and claims for its product can backfire as the plaintiff focuses on anecdotal evidence: “This company claimed their product would [save/improve/protect] lives—but it certainly didn’t for Mr. Jones.” Plaintiffs can focus jurors’ attention on this outlier to make any number of additional points about the actions the defendant did not take. For example:
“The company sat there touting its ‘lifesaving’ product, raking in the profits, knowing all the while it was unsafe.”
“If only the defendant had bothered to spend more time and money on testing. Instead, it chose to cut costs—and look what happened.”
3. Your Lack of Warnings Denied the Plaintiff a Choice
A failure to warn is often presented by the plaintiff’s counsel and viewed by many jurors as a “denial of choice.” Rather than let jurors consider whether the plaintiff would have heeded (or even read) a fully inclusive warning, the issue is put in absolute terms: the defendant company denied the plaintiff their right to make an informed decision about whether to use its product.
Further, hindsight can cast a negative light on a product’s warnings and labels, no matter how thorough. Plaintiffs, and plaintiff-leaning jurors, can look back and argue that a defendant should have provided additional warnings—while glossing over whether a warning that accounted for every single possibility (no matter how small or unproven) would be realistic, responsible, or even able to fit on the package.
Common Weak Point: Test Data and Third-Party “Studies”
Did one organization cite a substance in the product—even trace amounts—as a “possible carcinogen”? The defense might argue that the research behind this classification was flawed or inconclusive. But, jurors counter, why was it not on the label just to be safe? The plaintiff should have had all the available information so they could choose for themself.
Similar problems arise in pharmaceutical cases. The company may have a number of clinical trials, but plaintiffs can take that data and cherry-pick a side effect that perhaps only one or two people encountered. From there, they rely on jurors not understanding the importance of sample size and statistical significance. Instead, the defendant “knew” of a possible danger, and by not disclosing it, denied the plaintiff a choice.
4. Regulations Represent the “Bare Minimum”
Due to jurors’ discomfort with feeling vulnerable, their increasingly negative attitudes about corporations, their decreasing trust in the government and its agencies, and their declining tolerance for risk, you might imagine that jurors’ expectations for company behavior (especially regarding health and safety) are reaching nearly insurmountable levels. And you can bet plaintiffs will use that against defendants. After all, as they might argue, “No level of caution—and no cost—is too high when it comes to people’s lives.” How can jurors disagree with that?
Consequently, there is a notable discrepancy between legal standards and many jurors’ desired/expected standards. Despite the purpose of regulations from agencies like the Occupational Safety and Health Administration (OSHA) and the FDA, following the government’s rules and regulations is a less effective shield for companies than it used to be. As the population’s skepticism about the government builds, that shield weakens. Where human safety is concerned, doing the perceived “bare minimum” is not acceptable to jurors.
Exacerbating the situation is some jurors’ increasing conspiracy-mindedness. As one example, during the early days of the COVID-19 pandemic, we observed slight upticks in jurors’ opinions of agencies like the FDA. However, as 2020 progressed, people exhibited significantly less trust in the FDA. There was a growing belief that government agencies are manipulated by private companies. Indeed, it is now likely that a subset of jurors in any case will believe that government entities such as the FDA are manipulated by large corporations—such as the very same corporations that manufacture health and safety products.
How Can the Defense Counter?
The above weaknesses are very much intertwined. Jurors’ fears, discomforts, and misunderstandings feed their beliefs about corporate motives and their unrealistic expectations of corporate behavior. Plaintiffs’ counsel has a readymade narrative that aligns with and preys upon jurors’ pre-existing safety concerns and sense of vulnerability.
The best solutions will, as always, depend on the specifics of your case. However, because plaintiffs’ main arguments (and jurors’ reactions to them) are common and have broad applications, there are a number of important steps you can take every time.
Identify Your Weak Points
1. What are your case facts?
- How thorough was your testing?
- Was there evidence of a problem?
- Did you warn sufficiently?
- If there was an issue, how quickly did you respond? What did you do?
- Could you reasonably have avoided the incident?
2. Knowing these facts and the plaintiff’s likely arguments, where are the areas you’re most vulnerable? What is the plaintiff going to attack hardest?
3. Are there certain facts that the plaintiffs do not want to acknowledge or admit? How can you best use those to your advantage?
4. Who will your witnesses be? How prepared are they to testify? Are there witnesses who you know need thorough preparation?
5. How well can your experts explain the science/testing/warnings to laypeople in a trial? How can they improve those messages?
Build an Affirmative, Thematic Case
Now that you have identified your weak points, you will need a strategy that goes beyond simply denying what the plaintiff claims. Think about how you can frame your case affirmatively, not defensively.
The most effective way to do this is through case themes. These are not mere arguments, but rather repeatable, digestible, and memorable phrases that teach jurors your story and create umbrellas under which you can organize key evidence. The plaintiff is already using powerful themes to hurt your case: “Profits Over People,” “Knew and Did Nothing,” and “Denial of the Plaintiff’s Right to Choose” are a few of the major ones you are likely to encounter in some form. So how will your competing themes tell a better story?
To develop themes that resonate with your specific juror pool and apply to your specific case facts, we recommend the assistance of an experienced jury consultant. The right consultant knows how to craft and deliver themes that work in a variety of situations. Further, they can design research projects (like mock trials or focus groups) to uncover representative jurors’ actual opinions—identifying your case strengths, weaknesses, and gaps in information. Bringing in a jury expert means you are not relying on intuition alone.
Involve Witnesses in Your Narrative
Your witnesses are the characters in your story—so they can continue with your themes right where you leave off. They should be familiar with the overall themes you have developed, know their own themes, and be able to work them into their testimony without sounding like a mouthpiece.
This means preparing your witnesses thoroughly so that they have the communication tools and strategies they need to answer the tough questions. Direct examination is one thing, but they’ll need to handle cross, when the plaintiff’s counsel will home in on your weak points. How will your witnesses respond to problematic documents? Can they give explanations that fall in line with your strategy? Are there opportunities for them to poke holes in the plaintiff’s case?
Identify and Remove the Riskiest Jurors
An awareness of your biggest weaknesses can also point you toward key voir dire questions and topics. With the right lines of questioning, you can often reveal the worst offenders—those who would enter trial unable to hear your case fairly—and remove them from the panel. These questions can be tailored to account for each of your weaknesses. For instance, you can identify:
- Jurors with strong anti-corporate biases, who are likely to flock to the plaintiff’s “Profits Over People” arguments
- Jurors with unreasonably high standards for testing and warning
- Jurors who feel negatively about government agencies (like the FDA) or believe they are controlled by corporate interests
- Jurors who would be particularly put off by certain internal company documents and unable to acknowledge their context
It is also critical to consider the impact that greater ideological polarization has had on how jurors interpret information. It is no secret that the U.S. has become ideologically divided. More than ever, jurors on both ends of the political spectrum have strong opinions and are not afraid to stick by them. Even within political parties, we have identified subsets of jurors that flip the conventional script when it comes to their verdict decisions.
Additionally, to a greater degree in the last five to 10 years, we hear people across the country say they want to create change and are fed up with the status quo. Many potential jurors, therefore, believe they can implement some of this change via their jury duty. If people with extreme opinions and agendas end up on a panel, they are not likely to be deterred from pursuing their goals.
Jury consultants can be of further help here, as research projects and social media searches are invaluable in developing robust juror profiles and voir dire questions. A consultant can then accompany your team during the jury selection process to track important juror responses and make recommendations.
While the defense vulnerabilities we have examined herein are not necessarily exclusive to health and safety product liability litigation, such cases contain an especially problematic combination of factors—a perfect storm that gives plaintiffs significant power. Jurors can be convinced to not only feel sad about the plaintiff but angry about the defendant’s conduct and scared about their own vulnerability and the notion of further harm should the defendant go unpunished. It is these strong emotions that drive exorbitant damage figures, examples of which are abundant in recent “nuclear verdicts.”
There is no easy fix, but defendants should begin by familiarizing themselves with plaintiffs’ common avenues of persuasion and viewing their own cases and shortcomings with a critical eye (jurors certainly will). From there, crafting a thematic narrative and working to seat only those jurors with reasonable expectations, who can put aside their feelings and focus on the facts and the science, will offer defendants their best chance of success in a litigation genre stacked against them.
View this article on the National Law Review website: Health & Safety Product Liability, Defense Weaknesses & Solutions (natlawreview.com)