In jury selections that involve workplace respirator use (either directly or indirectly) in the presence of toxic dusts, a key voir dire question has always been whether a juror personally has used a disposable respirator and, more importantly, whether they believe it protected them. So, as COVID-19 first trained its eye on the U.S., we saw an early opportunity to understand how this new virus might influence jury eligibles’ use of and trust in masks and respirators for protection, whether against viral transmission or potentially toxic dusts. After all, for future toxic tort cases, it is crucial we understand how jurors’ anxieties about toxins around them, exposures, and trust in protective gear have been affected due to mask use (or misuse) during the COVID-19 pandemic.
In March 2020, just before states generated “stay-at-home” orders as well as during those orders, Litigation Insights conducted a national survey1 on jurors’ use of and attitudes toward respiratory protective equipment. We then compared segments of this new data against pre-COVID respirator-related trial and mock trial questionnaire data to examine shifts and trends.
Have jurors increased or decreased their trust in respiratory protection? How do they distinguish respirators versus non-respirator facemasks? How might the pandemic affect their leanings toward plaintiffs or defendants in litigation involving respirator use around toxic dusts? We share some of our most interesting findings below:
Pre-COVID2 Versus Post-COVID Respiratory Protection Usage
When asked about use of a non-respirator facemask at home or work, 34% of past jurors and 48% of current 2020 respondents had used a mask – be it a medical, bandana, or dust mask. This uptick in use was mirrored by an April YouGov poll,3 which revealed a strong shift in support for wearing masks in public; in the beginning of April, the poll reported that only 17% approved of mask-wearing, but by the end of the month, 63% approved. A June 2020 Pew Research poll4 likewise reported that 70% of Americans believed people should wear facemasks “always” or “most of the time” while away from home. Interestingly, however, when the researchers divided that segment by political-party affiliation, facemask support decreased to 52% for Republicans, and increased to 86% among Democrats.
More important to our analysis was whether respondents believed the mask they used was protective. For non-respirator facemask use, 85% of past jurors believed it protected them (based on a yes/no question), while in the 2020 survey, 97% believed it protected them (to some degree). However, that degree of perceived protection was where jurors exhibited mixed feelings: Of the 97%, only 58% endorsed the masks as protecting them “very well” or “well”; the other 39% believed their protection was only “a little.” So, some doubt about facemasks’ effectiveness lingers.
When it comes to disposable respirators, jurors’ belief in their protectiveness against toxic dusts in the workplace is often a voir dire issue that can lead to cause challenges when a juror used a respirator mask (particularly the same brand at issue in trial) and did not believe they were protected. In pre-COVID data, jurors were asked a yes/no question about respirator use in the workplace, and 23% reported use. In the 2020 survey, 19% reported using a respirator to protect them from potentially toxic dusts. When asked whether the mask protected them, 85% of pre-COVID jurors believed it did. Results were similar in the 2020 survey, but jurors’ degree of confidence in that protection was stronger than with non-respirator facemasks: 90% believed the respirator protected them “very well” (52%) or “well” (38%), while only 10% felt it protected them “a little.” In other words, respirator users had more trust in the protection they received than those using non-respirator masks.
This more detailed view of jurors’ trust in masks can help us better frame the way we refer to respiratory protection products going forward, as well as how our experts and corporate representatives describe them. Because jurors feel more protected by respirators than other facemasks, if the product at issue is a respirator, it will help to define the product explicitly for jurors: It’s not a fabric or medical mask – it’s a “respirator.” Continue that messaging through witnesses and attorney questioning, using “respirator” or “disposable respirator” instead of “respirator mask” or simply “mask.”
Individual Distinguishers of Respirator Trust: Social Politics
Although we conducted several analyses of our 2020 data to distinguish jurors who trusted respirators versus those who didn’t – including age, education, politics, and gender – only social politics and gender provided statistically significant distinguishers.
To assess social politics, respondents were asked, “On social issues, do you consider yourself to be: liberal, moderate, or conservative?” Overall, social liberals were the most concerned about the risk of getting COVID-19 (30% “extremely” concerned, 48% “somewhat” concerned). Fifty percent of both social moderates and conservatives reported being extremely or somewhat concerned, but social moderates held the lowest level of extreme concern, at 18%. Although this data was collected before the CDC recommended a fabric mask outside of the home, the degree of concern over catching COVID-19 may speak to a juror’s willingness to wear a mask in public and their expectations toward the mask-wearing habits of others.
So how does social politics affect attitudes toward the protectiveness of disposable respirators? Respondents were asked, “In a lawsuit about the protectiveness of disposable respirators, would you likely start out favoring a worker with an asbestos-related illness or the manufacturer of a disposable respirator?” As the chart below depicts, those with socially liberal views were significantly more likely to begin a trial involving a respirator manufacturer favoring the plaintiff, while social moderates and conservatives would not favor either side. This comports with our past research, which has shown that socially liberal individuals tend to exhibit more anti-corporate views and show greater distrust in the motivations of corporations.
Furthering this idea, social moderates and conservatives were also significantly more likely to disagree (36% of moderates, 34% of conservatives) that companies that manufacture disposable respirator masks are more concerned with profit than ensuring the safety of the people who wear their masks; only 23% of social liberals disagreed. Interestingly, while there may be more distrust among social liberals of a respirator manufacturer’s profit motives, they are also significantly more likely to believe the respirators keep people safe from toxins – 18% of social liberals strongly agree with that concept, compared to 14% of social moderates and 9% of social conservatives.
Individual Distinguishers of Respirator Trust: Gender
Gender also emerged as a distinguisher of respirator attitudes and COVID-19 concern. While women reported more extreme concern over catching the virus (25%) than men (20%), when it came to toxic substances and respirator masks, men reported greater trust and usage. Over two-thirds (69%) of men reported “always” wearing a mask when working with potentially toxic fumes versus 53% of women, and they were more likely to strongly agree (19% versus 9%) that wearing respirator masks around toxic substances makes people safer. That pattern translated into greater trust; men were more likely than women to agree (69% versus 52%) that respirator masks are effective in protecting individuals from asbestos.
Additionally, an interesting distinguisher surfaced in looking at whether men and women held different beliefs about respirator manufacturers’ priorities regarding profits versus safety. The difference in gender appeared in their disagreement with the concept; specifically, 38% of men disagreed that respirator manufacturers put profits over safety, while 24% of women disagreed. Given men’s greater reported use of and trust in respirator masks, it is unsurprising they would be less willing to attribute negative motivations to the makers of those masks. For example, during one of our mock trial exercises, a male juror argued, “Yes, companies have to make money. That’s how a business works. But a company that manufacturers safety products isn’t going to ignore safety, especially when it could make them lose even more money.”
COVID-19 has upended many of the things we take for granted during our daily lives, and we are likely to continue to see its rippling effects for some time. Even several months after the initial onset of the virus, attitudes towards masks are continuing to shift within the public discourse.
Overall, the latest polls show an increase in mask usage. One could imagine jurors may consider themselves to have greater familiarity with, or even knowledge about, facemasks and even disposable respirators. While pre-COVID data showed a smaller number of jurors had experience wearing masks on a consistent basis, and an even smaller number wearing respirators for toxic dusts at work, facemask use and acceptance for fighting COVID has increased over time. Most people now have a story of a mask fogging up their glasses, feeling smothered in the supermarket, or a relative who keeps wearing their mask incorrectly below their nose.
Between this shift and jurors’ greater anxiety about respiratory health effects produced by COVID-19, it is possible that respirator use and acceptance may also be increasing. However, that acceptance and use does lead to more questions: Will jurors believe they are more familiar with masks and respirators, their fit, and their protectiveness? Does this perceived familiarity pose a risk to defendants, or would it benefit defendants such as respirator manufacturers? Such questions suggest that continuing to follow jurors’ changing attitudes and behavior will be a key next step.
By: Katrina Cook, Ph.D. – Consultant & Jill Leibold, Ph.D. – Director of Jury Research
1 Our survey collected data from 538 jury-eligible respondents.
2 Minor caveat: Our pre-COVID respondents answered questions with very slight differences in wording than our current COVID study from March 2020.