Corporate defendants often rely on government safety standards for product safety, services, and workplace procedures. In litigation, standards from the Centers for Disease Control and Prevention (CDC), the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA) all play a key role in their defense, case themes, and expert testimony. “OSHA is the expert in keeping workers safe and employers on task”; “The CDC’s findings are based in the world’s best and most respected science”; “The FDA’s regulations are the gold standard for safety in the pharmaceutical industry” – themes like these are common and have historically been useful to help jurors contextualize the various actions or inactions of defendant companies.
However, if jurors do not trust these agencies or safety standards, then a defendant’s claims that it relied on and met those standards may fall on deaf ears. Since attitudes toward the government and agencies shift over time, in part due to changes in leadership, policy, and the handling of prominent events, we set out to better understand these changing patterns in juries.
Litigation Insights last ran a study on jurors’ attitudes toward the federal government and its agencies during the Obama administration, so we launched a new survey1 to assess how the public’s opinions may have changed during the Trump administration, including its handling of the COVID-19 pandemic.
Juror Attitude Shifts from 2013 to 2020
We compared our 2013 study, which examined jurors’ attitudes toward the federal government, the EPA, the FDA, and OSHA, with our new April 2020 survey to assess any shifts in jurors’ attitudes over the past seven years.
Federal Government Overall
Throughout our data collection, jurors have held predominantly negative views of the federal government. In 2013, opinions of the federal government were fairly negative, with 56% reporting a negative evaluation and only 16% reporting a positive evaluation. But today, that negativity has grown, with 67% negative evaluations (an 11% increase), and only 18% positive. Similarly, there has been a significant swing in jurors’ trust of federal safety standards: In 2013, 43% of subjects agreed they “believe the federal government when it says something is safe,” but in 2020, a mere 19% agreed with that statement. Jurors’ beliefs also strengthened that “government regulations in the U.S. are manipulated by large corporations”: 40% of the 2013 sample believed this occurs “very often” or “always”; that number is now 74% in 2020.
Certainly, there has been a negative shift in overall opinions of the federal government and trust in its safety standards. But does this pattern hold for specific federal government agencies?
Specific Federal Agencies
Our surveys also asked jury eligibles about the EPA, FDA, and OSHA – and did indeed reveal similar shifts for the EPA and FDA. Specifically, when we asked respondents if they trust the EPA when it says something is safe, 58% agreed in 2013, which diminished to only 34% in 2020. Likewise, we asked subjects to evaluate the job the FDA is doing ensuring medications it approves are safe; while 69% thought the FDA was doing a “good” or “excellent” job in 2013, that percentage dropped dramatically to only 25% in 2020.
OSHA, on the other hand, has enjoyed a positive shift in attitudes. In 2013, subjects rated how well the agency keeps workers safe, and 64% rated OSHA as “average,” “good,” or “excellent.” Notably, this number increased 20 points to 84% in 2020.
2020: Distinguishing Juror Attitudes Toward the Federal Government vs. Agencies
So, how concerning should these recent negative evaluations of the government and its safety standards be to defendants?
Well, it’s not all bad. Although current feelings about the federal government as a whole are not good, opinions on the individual agencies differ. To examine these differences further, we analyzed the data from our April 2020 survey and compared attitudes toward each of four federal agencies – the CDC, EPA, FDA, and OSHA – to those about the federal government.
Notably, results showed that each of the four individual federal agencies have significantly more positive evaluations than the federal government as a whole. On a five-point scale (0 = very negative, 4 = very positive), the average for the federal government was 1.18, whereas all four agencies were above the midpoint of 2.0, showing that despite poor opinions of the federal government overall, those views don’t carry over to the federal agencies.
Similarly, there are substantial differences in jurors’ trust of the safety standards of the federal government in comparison to the federal agencies, with the agencies receiving significantly more positive evaluations of their safety standards. (Interestingly, jurors’ trust in federal government safety standards is significantly more positive than the overall evaluation of the federal government. However, it still falls below the midpoint, indicating a sense of uncertainty about its safety standards.)
We see a similar pattern of results in jurors’ views on how the federal government and the federal agencies are protecting Americans from COVID-19. That is, people have significantly better opinions of the federal agencies than the federal government:
Trust in both the federal government as a whole and government agencies is trending downwards overall. Consequently, it may be tougher going forward to fall back solely on meeting government/agency standards. However, given the significantly more positive attitudes toward the agencies than the federal government, and the fact that jurors on average still trust the agencies slightly more than not, the defense should take care to cite the specific agency behind the regulations at issue, rather than referencing the “government” in broad terms.
Part 2 goes on to discuss potential factors that influence the differences between jurors’ evaluations of the federal government and its agencies.
By: Nick Polavin, Ph.D. – Consultant
1 The survey collected data from 283 jury-eligible respondents.