When it comes to medical and safety products liability, the defense is inherently at risk. While we’ve basically seen it all from plaintiffs, where human safety is concerned, a defendant tends to be vulnerable to a common set of plaintiff arguments. But under the circumstances, in some ways this is actually good news. At least if you know what to expect from your opponent and from jurors, you can try to do something about it.
The best way to begin to counter weaknesses in litigation is first to understand why the weaknesses exist. So, here in Part 1, we’ll take a look at the elements that combine to give plaintiffs such an advantage in these cases. Then, in Part 2, we’ll discuss the four resulting weaknesses that tend to pose such a big problem for the defense. In Part 3, we’ll lay the groundwork for overcoming those weaknesses.
Why Do These Types of Cases Carry Inherent Defense Weaknesses?
Plaintiffs Are Often Sympathetic.
When dealing with products liability, and especially medical and safety cases, someone has usually been injured, infected, disabled (or at least is making these claims), or killed. They’re often just everyday people, hard workers with families. The harm that befell them seems unfair and tragic. They’re facing exorbitant medical bills. Unfortunately for the defense, the sympathy this creates can cause jurors to perform some interesting psychological acrobatics.
First, jurors often feel the need to find someone to blame. Jurors may be more willing to give the plaintiff the benefit of the doubt to avoid the possibility that they’d be letting someone – especially a “big corporation” – off the hook. Second, sympathy makes it difficult to say no, and jurors may award damages despite not being convinced of the defendant’s liability. We’ve seen jurors work backwards 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; so how can they sit there and tell the injured and his or her family that they’ll walk away empty-handed?
Jurors Have Limited Knowledge of Scientific and Statistical Concepts.
The nature of these 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 proper scientific methodology, and “cancel out” expert testimony if they’re met with competing views. Since the defense case often relies more on hard science, 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.
Jurors Don’t Want to Feel Vulnerable.
If there’s a single, overarching reason that cases involving human health and safety are easy for plaintiffs to exploit, it’s that jurors (being people) don’t like to feel vulnerable. As we see with plaintiffs’ ever-increasing use of the “reptile strategy,” plaintiffs take advantage of case circumstances to put jurors in the shoes of the injured and stoke fear for the safety of the community.
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 don’t, and can’t, match reality. There’s 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 don’t want to feel vulnerable when using medical and safety products, so they are inclined to reject anything suggesting it is possible for a “bad” outcome to occur with normal use of those products. Instead, they look for something, anything else to blame for a bad outcome: The product was probably defective; it was probably poorly designed 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.
Now add in jurors’ limited ability to understand scientific and statistical evidence, and you’ll 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.
With all this in mind, let’s move on to Part 2, where we examine the four arguments plaintiffs often present to make life difficult for your defense.
By: Barbara Hillmer, Ph.D. – Senior Consultant