Now that we’ve covered how jurors tend to think about health and safety products liability cases (Part 1), let’s examine the 4 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 – these cases offer plentiful opportunities for plaintiffs to blur the lines between business and financial decisions. Plaintiffs will suggest to jurors that money is the driving factor behind your client’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 or opinions. This includes financial analyses, which can be presented as “proof” that you decided for or against a certain action based on the costs. Such documents are taken out of context to suggest that your client made reckless decisions to boost its bottom line, further fueling the “Profits Over People” narrative.
Considering the financial aspects might sound like a natural part of running a business, but this is where jurors with anti-corporate biases 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
As we’ll discuss further, many jurors have exceedingly high expectations for products in the health and safety fields and the companies that make or design them; so, 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’s no way to win. Take medical devices: According to the FDA’s 510K process, 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’s ever implanted in a human (ironically ignoring the fact that clinical testing itself would require human implanting). Despite a product’s similarities to previously approved products, in jurors’ minds the case is put in terms of, “My grandma could have something implanted in her that’s never been proven safe in humans?”
So you may have great testing, in line with the FDA’s process, and still find yourself among unhappy jurors.
2. You Knew and Did Nothing
Plaintiffs will lead jurors to believe 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 you actively concealed problems or purposely delayed your response. This often harkens back to “Profits Over People” – as they’ll frame it, in your effort to limit expenses and/or your fear that sales would be damaged should the public discover the dangers of your product, you failed to take action and withheld key information from consumers.
After all, if there was any reason to believe the product was unsafe, why didn’t you do a recall? Why didn’t you add a specific warning?
Potential 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 you didn’t take. For example:
“The defendant sat there touting its ‘life-saving’ 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 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: You denied the plaintiff his right to make an informed decision about whether to use your product.
Furthermore, hindsight can always 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.
Potential Weak Point: Testing Data and Outside “Studies”
Did one organization cite a substance in your product – even trace amounts – as a “possible carcinogen”? You might argue that the research behind this classification was flawed or inconclusive. But, jurors counter, why wasn’t it on your label just to be safe? The plaintiff should have had all the available information so he could choose for himself.
Similar problems arise in pharma cases. You may have a number of clinical trials, but plaintiffs can take your 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, you “knew” of a possible danger, and by not disclosing it you denied the plaintiff a choice.
4. Government Regulations Are a “Bare Minimum”
Due to jurors’ discomfort with feeling vulnerable, as well as their increasingly negative attitudes about corporations and the government, jurors’ expectations for company behavior (especially when it comes to health and safety) are reaching nearly insurmountable levels. And you can bet plaintiffs will use that against you. 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’s a notable discrepancy between legal standards and many jurors’ desired/expected standards. Despite the purpose of regulations from agencies like 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 and its agencies builds, that shield weakens. Where human safety is concerned, doing the perceived “bare minimum” isn’t acceptable to jurors.
What Can the Defense Do to Counter These Weaknesses?
As you can see, these weaknesses are very much intertwined. Jurors fears, discomforts, and misunderstandings feed their beliefs about corporate motives and their expectations for corporate behavior. This is what gives plaintiffs such power in these cases. So while the weaknesses we’ve presented here aren’t necessarily exclusive to health and safety products litigation, such cases offer a particularly problematic combination of factors.
In the face of these daunting disadvantages, what can the defense do to counter the plaintiff’s narrative? Start with our recommendations in Part 3.
By: Barbara Hillmer, Ph.D. – Senior Consultant