COVID-19 And Design Defect Jurors' Risk Evaluations: Part 2

By Jill Leibold, Andrew Jackson, Delmar Ehrich and Joseph Price
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Law360 (July 29, 2020, 5:58 PM EDT) --
Jill Leibold
Jill Leibold
Andrew Jackson
Andrew Jackson
Delmar Ehrich
Delmar Ehrich
Joseph Price
Joseph Price
Risk assessment plays a key role in complex product liability design defect cases that require risk-utility balancing. Understanding how each potential juror assesses risks is key to selecting a sympathetic jury, and presenting a case appropriately tailored to the audience. 

When COVID-19 struck, nearly every person on the planet was forced to engage in new risk evaluations. The pandemic has added to, and potentially altered, the risk assessment profile of potential jurors — and should be evaluated as part of jury research in a design defect case.

The first installment of this three-part article considered two key components of a design defect case that may be impacted by COVID-19 risk evaluation: risk-utility balancing and the "state-of-the-art" defense. This installment discusses insights gleaned from jury research associated with the pandemic, and how the pandemic may impact jury selection. The final installment will consider how counsel defending product liability cases can use COVID-19 jury research to prepare a persuasive design defect case.

The Pandemic's Impact on Juries

Potential Jurors' Views About Risk

We know from jury research that risk profile can vary based on demographics, including age, gender and occupation.[1] Although demographics only account for perhaps 5-10% of jurors' verdict preferences, they can somewhat influence risk assessments.

If a case involves certain drugs or devices used by women, for example, it may raise particular concerns for female jurors about risks to themselves and their biological children posed by use of the product. On the other hand, older men can be more open-minded about the risks of a hormone product under scrutiny in litigation than women. But jurors individually assess whether a product carries too great a risk for their use, regardless of gender — it's always case-specific.

Jurors' occupations and education levels can have more specific impacts. Jurors in hard science careers are often more receptive and understanding of a case's underlying science, studies and expert witnesses; while jurors in "helping" professions — such as social work, clinical psychology or non-STEM education — may approach a case with more sympathy.

But regardless of case-specific demographic predictors, other psychological profiles and juror attitudes can provide better assessment of jurors' views of risk, such as holding an external locus of control, greater fearfulness, social politics or fiscal political leanings.

Litigation Insights conducted a series of surveys from March through May to assess potential jurors' current views on the federal government and its agencies, corporations, pharmaceutical companies in particular, social media postings about the coronavirus, and respirator mask usage. There were five national surveys conducted of jury-qualified respondents. Each survey collected data from between 39 to 48 states across the U.S. These surveys revealed that social and fiscal politics were the best predictors of attitudes toward corporations. The research indicated that:

  • Fiscal and social liberals were more likely to agree that "all corporate CEOs should be giving up their paychecks to ensure the company can keep paying the 'little guy employee' through the stay-at-home conditions due to COVID-19," while conservatives disagreed.

  • Fiscal and social conservatives agreed that "corporations who are laying off workers are being smart — that is what will keep the company alive until this COVID-19 shut-down is over and the employees can be rehired," while liberals disagreed.

  • Fiscal and social conservatives agreed that "companies that have started to manufacture products that they did not previously make to help with the fight against COVID-19 (e.g., masks, respirators, hand sanitizer) have gone above and beyond in their duty to the public," while liberals disagreed.

  • Fiscal and social conservatives agreed that "companies raising prices on goods the public needs right now isn't wrong — it's how supply and demand of economics work," while liberals disagreed.

These social and fiscal political views can offer a suggestion as to whether jurors will lean toward the plaintiff or a corporate defendant. It appears that these social and fiscal political distinctions continue to serve as characteristics that can indicate plaintiff or defense jurors.

Potential Jurors' Views Toward Corporations

Jurors' opinions on corporations likely play a significant role in a design defect trial. Recent research indicated that jurors' corporate opinions have not changed dramatically.[2] However, corporations that have pursued "good deeds" during the pandemic (giving money to COVID-19 response, manufacturing COVID-19 supplies, etc.) have received a slight bump in juror goodwill.

Analysis of Litigation Insights' survey of attitudes toward the pharmaceutical industry in particular reveals age as a distinguishing factor on several issues. Overall, older respondents held more favorable and less suspicious attitudes toward pharmaceutical companies, compared to their younger counterparts. For example, older potential jurors disagreed that the American legal and political system is rigged in favor of big pharmaceutical companies, while younger people agreed that the system is rigged. 

Additionally, as age increased, jury eligibles were more likely to disagree that pharmaceutical companies have a duty to know of, and notify product users about, every possible risk associated with a product. Finally, as age increased, potential jurors expressed greater disagreement that pharmaceutical companies use advertisements to make their products appear safer than they are, while younger people agreed.

When focusing on the pharmaceutical industry specifically, respondents overall held expectations that the pharmaceutical industry would offer at-cost or even free assistance with medical and other supplies for the fight against COVID-19. For example, 52% of respondents agreed that until the pandemic is under control, companies that make pharmaceuticals, medical equipment and masks should be providing these items to hospitals for free, and 65% agreed they should be providing these supplies at cost, foregoing any profits.

So pharmaceutical and device manufacturers accused in the media of profiting from the pandemic, even when providing solutions such as medicines and vaccines, should be aware of the fine line between jurors' favorable opinion of companies providing these goods, and the view that such companies are greedy and opportunistic.

Findings also suggest that the backlash against corporations for layoffs is low — but that does not extend to corporate executives. A majority of jurors believed that corporations who are laying off workers are being smart — that is what will keep the company alive until COVID-19 is over and the employees can be rehired. However, this goodwill did not extend to corporate executives, as a majority of potential jurors polled agreed that layoffs and furloughs of employees during a pandemic are a prime example of corporate executives being greedy and putting themselves first.

This is yet another nuanced issue to consider if proffering a corporate representative witness at trial. While the corporation itself may not be viewed negatively by the public, the corporate witness may come under greater scrutiny from jurors.

Potential Jurors' Views Toward the Federal Government and Government Agencies

Jurors' trust in government agencies matters in design defect cases — particularly in complex product liability cases, and especially with regulated industries. In 2013, Litigation Insights conducted a study to examine jurors' attitudes toward the federal government, the U.S. Environmental Protection Agency, the U.S. Food and Drug Administration, and the U.S. Occupational Safety and Health Administration. Another survey of eligible jury participants was conducted in April of this year, to assess any shifts in jurors' attitudes over the past seven years.

In 2013, opinions of the federal government were fairly negative, with 56% reporting a negative evaluation and only 16% reporting a positive evaluation. Today, that negativity has increased to 67%, while only 18% have a positive evaluation. Throughout our data collection, jurors have tended to hold negative views of the federal government, but an 11-point negative shift is a noteworthy trend.

Similarly, jurors' trust of federal safety standards has swung against the federal government. In 2013, 43% of subjects agreed that they "believe the federal government when it says something is safe," but in 2020, only 19% agreed with the statement. Relatedly, jurors' beliefs strengthened that "government regulations in the U.S. are manipulated by large corporations," with the 2013 sample at 40% believing this occurs "very often" or "always," but 74% believing this occurs "very often" or "always" in 2020.

The survey also asked eligible jury participants about the EPA, FDA and OSHA, revealing similar shifts for the EPA and FDA. Specifically, when respondents were asked if they trust when the EPA says something is safe, 58% agreed in 2013, but that percent fell to 34% in 2020.

Likewise, when subjects were asked to evaluate the job the FDA is doing ensuring medications it approves are safe, in 2013, 69% thought the FDA was doing a "good" or "excellent" job; that number dropped to 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 to 84% in 2020.

So, how concerning should these recent negative evaluations of federal safety standards be to defendants? Fortunately, respondents distinguish the federal government as a whole from the actions of federal agencies, separating their negative overall feelings about the federal government from their evaluations of the individual agencies. We analyzed the data from our April 2020 survey and compared attitudes toward each of four federal agencies — the EPA, FDA and OSHA, as well as the U.S. Centers for Disease Control and Prevention — to those about the federal government generally.

Notably, results showed that each of the four individual federal agencies have significantly more positive evaluations than the federal government as a whole. This was measured using a five-point scale, with zero being very negative, and four being very positive. The average score for the federal government was 1.18, whereas all four agencies were above the midpoint of 2.0, showing that poor opinions of the federal government do not carry over to individual agencies.

Similarly, there are substantial differences in trust of the safety standards of the federal government in comparison to agencies. Specifically, the safety standards of the four agencies received significantly more positive evaluations than those of the federal government generally. Interestingly, the views of the federal government's safety standards is significantly more positive than the overall view of the federal government. However, it still falls below the midpoint, indicating uncertainty about these standards.

Once again, we see a similar pattern of results in jurors' views on how the federal government and federal agencies are protecting Americans from COVID-19 — people have significantly better opinions of the federal agencies than the federal government overall.

But it is axiomatic that when dealing with matters of the federal government, we must assess how these views change based on party affiliation. Republicans have a more favorable opinion of the federal government than independents and Democrats — surprising given Republicans' usual support of smaller and less government, but likely influenced by a sitting Republican president. However, jurors' views on federal agencies are fairly consistent, with Democratic potential jurors viewing the federal agencies slightly more positively than Republican potential jurors.

Regardless of opinions of the federal government and/or agencies, potential jurors across party lines have high expectations for companies' compliance with governmental agency safety standards. Most jurors believe that it is critically important for companies to comply with safety standards set by government agencies. Indeed, most jurors feel that meeting safety standards set by government agencies is the bare minimum, and that companies need to increase their safety standards to adequately protect people.

The Pandemic's Impact on Jury Composition

COVID-19 will not only impact individual jurors' assessments of risk, it may also have a profound effect on jury composition. A commonly acceptable practice is for jurors to identify a valid reason as to why they are unable to attend jury duty on the date summoned. Courts will likely implement and enforce a rule to defer jurors if they express COVID-19 concerns.

Results from a recent Litigation Insights survey reveals that 61% of eligible jury participants would be willing to show up for jury duty. However, actual attempts at opening courts for jury trials have shown a vast range of responses from potential jurors. For example, in July, San Francisco courts' in-person show rate was reported at 7%, yet neighboring San Mateo's show rate came in at 60%.[3] It is noteworthy that San Mateo is home to a demographically older, more Caucasian and more conservative population in comparison to San Francisco.

The number of potential jurors unwilling to serve comports fairly closely with the number of potential jurors who expressed being very concerned about catching the coronavirus in a recent national survey. In this survey, 28% of eligible jurors were very concerned about contracting COVID-19.[4] ​These results suggest jurors may have heightened anxiety levels over falling victim to COVID-19, which, in turn, could affect jury pool composition.

Eligible jurors' concern about contracting the coronavirus was significantly correlated with the number of their reported social media posts about the virus. This led us to question how past trial jurors' social media posts about the coronavirus may enlighten us about how anxious jurors appear generally. To that end, the non-private social media posts of several hundred former trial jurors were reviewed.

Posts were coded by independent raters for the level of anxiety and fear shown about the virus. This offered clues to whether the types of jurors who posted more stood out, and what their perceived anxiety levels were. The number of social media posts by a juror, regardless of sentiment (e.g., pro-mask or anti-mask), was significantly correlated to their perceived COVID-19 anxiety levels — the greater number of posts, the more juror anxiety.

In the age of COVID-19, one would expect a decrease in average juror age, as older jurors may be unwilling to serve on a jury due to age and/or heightened vulnerability to the virus. According to the CDC's most recent data, the fatality rates for symptomatic COVID-19 cases among different age groups are as follows:[5]

0-4
0.2%
5-17
Less than 0.1%
18-29
0.5%
30-39
1.2%
40-49
3.1%
50-64
15.4%
65-74
20.8%
75-84
26.4%
85+
32.4%

If one adds the estimates of asymptomatic cases, the fatality rates are much lower. Furthermore, estimates indicate that 40% of fatalities in the U.S. occur among residents of long-term care facilities. In some states, like Minnesota, that number approaches 80%.

Thus, for a person under 65 years old, the risk of dying from COVID-19 is comparable to the risk of dying during the daily commute — back when we were making daily commutes. In short, based on the available data, older jurors have much more to fear than younger jurors.

But in a surprising twist, a May survey by Litigation Insights revealed that older respondents were significantly less concerned about experiencing severe complications from the coronavirus, such as needing a ventilator, compared to younger respondents. Making this finding even more fascinating, a prior survey conducted at the initial lockdown in the U.S. in mid-March — just six weeks earlier — revealed the reverse effect.

That is, in March, older jurors were significantly more concerned about contracting COVID-19 than younger respondents. Between March and May, the information about the virus and its effects turned potential jurors' concerns upside down when it came to age. The surveys also revealed surprising correlations between respondent age and trust in, and views of, respirator masks. Specifically, older respondents had gained trust in masks since the start of the COVID-19 pandemic, while younger jury eligibles lost trust or retained the same level of trust.

Additionally, greater age was also significantly correlated to stronger agreement that masks are effective in preventing the transmission of COVID-19. Based on this finding that older jurors showed less concern for contracting COVID-19, and greater trust in masks and respirators for keeping them safe, lawyers should not be surprised to see an increase in the average age of jurors selected in the COVID-19 era.

Jury composition may also be altered by the economic impact of the pandemic, in terms of the number of hardship cases. Juries may see an influx of workers who have been laid off or furloughed. Typically, laid-off jurors tend to be hostile toward corporations. But jury research performed by Litigation Insights reflects that most jurors believed that layoffs and furloughs were prudent actions by companies in order to avoid going out of business during the lockdown. This trend should be watched closely, as jurors' attitudes may change the longer the layoffs and furloughs continue, and as supplementary COVID-19 relief is phased out.

The final installment of this article will examine how counsel defending product liability cases can use COVID-19 jury research to prepare a persuasive design defect case.



Jill M. Leibold is a shareholder and director of jury research at Litigation Insights.

Andrew G. Jackson is an associate, 
Delmar R. Ehrich is a partner and Joseph M. Price is senior counsel at Faegre Drinker Biddle & Reath LLP.

Merrie Jo Pitera, CEO and director of jury research at Litigation Insights, also contributed to this article.


The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] We would be remiss to ignore that the pandemic coincides with a tumultuous time for race relations in our country, such that it is difficult to separate the two. Juror attitudes toward police brutality, systemic racism and the 2020 protests and riots may have a substantial effect on their views of risk. This research and analysis is important, and should be considered by counsel evaluating juries for product liability design defect cases. However, such research and analysis involves complexities that should be addressed in an independent article, one that we hope will be forthcoming.

[2] Jill Leibold, Katrina Cook, Nick Polavin, Understanding Jurors' Views During COVID-19: Social Media, Government, Corporations and More, Litigation Insights.

[3] Kate Larsen, Coronavirus Impact: Pandemic creates challenges as San Francisco tries to resume jury trials, ABC7 (July 2, 2020), https://abc7news.com/san-francisco-jury-duty-coronavirus-court-can-you-get-out-of-for/6290711/.

[4] Id.

[5] Centers for Disease Control, CDC COVID Data Tracker, Demographic Trends of COVID-19 cases and deaths in the U.S. reported to CDC (July 13, 2020), https://www.cdc.gov/covid-data-tracker/index.html#demographics.

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