By Jill Leibold, Andrew Jackson, Delmar Ehrich and Joseph Price

Law360 (July 30, 2020, 4:41 PM EDT) --

Jill Leibold

Andrew Jackson

Delmar Ehrich

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. The second installment discussed insights gleaned from jury research associated with the pandemic, and how the pandemic may impact jury selection. 

This final installment considers how counsel defending product liability cases can use COVID-19 jury research to conduct voir dire and prepare a persuasive design defect case.

Defending a Design Defect Case Post-Pandemic

Dealing With Consistent Reminders of Risk

Courts will not remain closed forever. Indeed, all over the country, courts are preparing for jury trials. Safety measures — imperative for the health of all involved — will be constant reminders of risk. Examples of the safety measures juries will be exposed to include:

• Questionnaires about health and infection symptoms;

• Infrared thermometers used at courthouse entrances;

• Limitations on the number of trials going on at a courthouse at any one time;

• Limitations on the number of jurors — at least in civil trials;

• Limitations on the number of preemptory challenges;

• Social distancing throughout the process, including if seated as a juror;

• How evidence is handled (that is, hard copy evidence may be sanitized);

• Masks in public or common areas, and in jury box if court permits;

• Requests by the court to report symptoms of illness; and

• Witnesses and attorneys in masks.

Further, media coverage of COVID-19 infection rates, death rates and potential countermeasures will be a ceaseless reminder of risk. These changes will likely impact juries' evaluations of cases — including evaluations of risk.

For example, in a survey conducted by Litigation Insights, 65% of those surveyed agreed that it would be harder to assess witness credibility if the witness is wearing a mask. In contrast, 64% of those surveyed would find attorneys less credible if they wore a mask at trial. It will be important for trial lawyers to assess the changes the courts are making to accommodate jury trials, and assess how such accommodations may impact a jury's views on credibility and risk assessment.

Using Voir Dire to Defend a Design Defect Case, in Light of Changing Juror Risk Evaluation

To effectively use voir dire to defend a case post-pandemic, defense counsel should ask two questions. First, will the courts allow questioning about COVID-19 effects on potential jurors? The answer at this point is unclear.

As a general rule, voir dire is more restricted in federal courts than state courts. In a recent instance, a federal court allowed limited supplemental juror questionnaires in order to reduce lawyer-directed, in-person voir dire. It is likely that more courts will employ supplemental juror questionnaires as part of their reopening safety protocols.

In comparison, the U.S. District Court for the District of Nebraska has stated in its reopening plan that "a more robust case-specific voir dire is unnecessary unless requested by counsel."[1] Counsel can expect fewer opportunities — or at least shorter windows — to conduct voir dire in person, and should think about how to tailor questioning to supplementary juror questionnaires.

Second, if a court allows questioning about COVID-19, what related jury questions would be most helpful? The attorney's goal is to preserve good jurors, primarily by not identifying them in the first place, only to be struck by the other side. Questions should be narrowly tailored to identify only those who are likely to agree with the opposition.

For example, since plaintiff supporters typically prefer to see greater government regulation of corporations, and most industries, defense counsel would only want to discover those jurors who believe corporate regulations should be more strict.

Further, if the court would allow a mini-opening — say, five minutes long — one would want to put forth the case's vulnerabilities, particularly teeing up potential negative attitudes jurors may harbor regarding federal agencies that a defendant may be relying on for standards, testing and the like.

In defending a product liability design defect case, we suggest the following as helpful voir dire questions related to COVID-19:

• How has the novel coronavirus affected your life? Do you work from home? Are you an essential worker?

• Do you wear a mask outside of your home? Under what circumstances? Do you practice social distancing? Under what circumstances?

• How have your views of pharmaceutical companies or medical device companies been affected by the pandemic?

• How do you feel about companies that shifted production to necessary medical devices, such as ventilators, or to PPE, but also generated a profit from those efforts?

• How have you been affected by any company layoffs or furloughs?

• Have you heard media news about furloughs and/or layoffs of workers by various corporations? If yes, how has that news affected your views of corporations?

• What do you think about the U.S. Occupational Safety and Health Administration's efforts to keep workers safe? What is your view of the job the U.S. Food and Drug Administration is doing regarding drug safety? What is your opinion of the job the U.S. Centers for Disease Control and Prevention does in keeping the public informed and safe from hazards?

Using Changing Juror Evaluation of Risk Post-Pandemic to Defend a Design Defect Case

Even after a jury is selected, the pandemic will undoubtedly continue to affect how the jury will evaluate a design defect case at trial. We identify four key areas of trial preparation and presentation that could be affected by the pandemic, and jurors' evaluations of risk.

First, the defense should evaluate its use of scientific research at trial. Throughout COVID-19, the science has been inaccurate, inconsistent and sometimes contradictory. Three examples illustrate the seeming failings of science in the court of public opinion:

• Scientific estimates of the spread and catastrophic death tolls from trusted scientific bastions have been inaccurate. In its initial design, the Imperial College model estimated up to 2.2 million deaths in the U.S. from the spread of the virus, not accounting for the potential negative effects of health systems being overwhelmed.[2] According to the CDC, at the publication of this article, there had been 150,283 deaths.[3] State models have been equally inconsistent. For example, a model commissioned by the Minnesota Department of Health and designed by Minnesota researchers projected 22,000 deaths between April and October in Minnesota.[4] In contrast, the model produced by the Institute for Health Metrics and Evaluation at the University of Washington projected only 360 deaths statewide.[5] According to the Minnesota Department of Health, at the publication of this article, there had been 1,594 reported deaths in Minnesota.[6]

• Appropriate safety protocols have been a moving target. Initially, many were concerned about contact transmission of the virus, leading to a run on disinfection wipes used to clean items from the outside world, like groceries. Today, the CDC states that it may be possible to contract COVID-19 by touching a surface or object that has the virus on it, and then touching one's own mouth, nose or eyes, but this isn't the main way the virus spreads.[7] Likewise, initially masks were only recommended for two groups of people: those showing symptoms, and those who were taking care of someone who was sick.[8] However, after it became apparent that asymptomatic people could be transmitting the disease, wearing masks became the recommended safety protocol.[9]

• The debacle of hydroxychloroquine as a treatment for the virus has likely damaged the public's faith in potential treatments of the disease.

Second, COVID-19 may become the poster child for a risk unknown to science. As a result, juries may find the concept of state-of-the-art evidence easier to digest and apply. However, this could be a double-edged sword. State-of-the-art arguments often rely on a decade, or several decades, of knowledge and scientific advances, while understanding of the novel coronavirus has been unfolding over mere months.

It could be difficult to draw similarities between COVID-19 public health developments and manufacturers' technology and knowledge refined over decades. Nonetheless, it is possible that opportunities could arise to draw parallels to state-of-the-art principles and devices that jurors may have become increasingly familiar with due to COVID-19, including masks, ventilators and ECMO machines.

Third, counsel should evaluate the shifting methods of proof, as traditionally credible evidence may be considered less so in light of the lessons of the pandemic. For example, infectious disease physicians or others on the front lines of the COVID-19 response may be, all things being equal, more credible witnesses. In contrast, an epidemiologist's analysis and assessment of data may be viewed as guesswork and unreliable in light of the COVID-19 model experience.

Reevaluation is especially important when considering evidence from the FDA, the CDC, state health departments or other governmental agencies. The seated jury's pandemic experience will likely influence the weight counsel should place on governmental agency evidence in support of, or against, the product.

Finally, counsel must tap into jurors' individual risk-utility analysis experience. Each jury will be intimately familiar with risk-utility balancing. Reminders of the risk-utility analysis in a juror's own life will permeate the courtroom, in light of the safety processes implemented by the courts.

By using the information learned in voir dire, and carefully observing the jury, counsel can tailor its approach. A jury that is more risk-averse will likely be diligent mask wearers who strictly adhere to social distancing, regularly use hand sanitizer and have favorable views of governmental agencies. While these are traditionally less-preferred jurors on a design defect case, they are likely to be more persuaded by solid scientific support and CDC and FDA evidence. Savvy counsel can use the risk profile of the jury to tailor the presentation accordingly.

In contrast, the less risk-averse are generally those who are less concerned with wearing a mask (except for jurors over 65, a group that is more likely to trust in, and use, a mask, but also likely less concerned about serious complications resulting from a COVID-19 infection), social distancing, using hand sanitizer and washing hands. They are also more likely to hold negative views about government agencies' response to COVID-19.

While a less risk-averse juror is preferable to the defense in a design defect case, evidence from government agencies supporting the design loses value. Furthermore, counsel should expect juries post-COVID-19 to fit the less risk-averse profile rather than the alternative, as many of the most risk-averse jurors may defer jury duty based on virus concerns. Public social media accounts of potential jurors may also indicate how anxious they are about COVID-19 generally.

Conclusion

The COVID-19 pandemic has fundamentally altered our way of life, and will continue to do so for the foreseeable future. It will be important to continue monitoring how the pandemic is impacting jurors' opinions and evaluation of risk.

The pandemic provides new data points to be considered in preparing product liability design defect cases, but counsel should not rush to abandon previously accumulated jury research. Instead, COVID-19 data points should be used to identify and appeal to preferred jurors.

Other data points arising from events around the country, including racial justice protests and social upheaval, are also relevant considerations. The best practices are to conduct jury exercises in a suitable venue to test how jurors are evaluating risk during or after the pandemic, and to devise a voir dire and trial strategy to fit the risk profile of likely jurors.

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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] Chief Judge John Gerrad et al., Ad Hoc Committee on Resuming Jury Trials with Drawings, at 5 (D. Neb. May 29, 2020).

[2] Neil M. Ferguson, et al., Report 9: Impact of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (March 16, 2020), https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf.

[3] Center for Disease Control, Cases and Deaths in the U.S. (July 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html.

[4] Michael Corey and C.J. Sinner, 360 deaths or 22,000? Why Minnesota's COVID-19 models are so different, Star Tribune (April 25, 2020), https://www.startribune.com/360-deaths-or-22-000-why-minnesota-s-covid-19-models-are-so-different/568966211/.

[5] Id.

[6] Minnesota Department of Health, Situation Update for COVID-19 (July 30, 2020), https://www.health.state.mn.us/diseases/coronavirus/situation.html.

[7] Centers for Disease Control and Prevention, CDC Updates COVID-19 transmission webpage to clarify information about types of spread (May 22, 2020), https://www.cdc.gov/media/releases/2020/s0522-cdc-updates-covid-transmission.html.

[8] Catherine Marfin, Why did the recommendation on wearing face masks change? Curious Texas Investigates, The Dallas Morning News (April 8, 2020), https://www.dallasnews.com/news/public-health/2020/04/08/why-did-the-recommendation-on-wearing-face-masks-change/.

[9] Centers for Disease Control and Prevention, Coronavirus Disease 2019: Considerations for Wearing Cloth Face Coverings (June 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html.

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