Product liability litigation: what does safety really mean to jurors?

CSI - Courtroom Sciences Inc

In order to mount an effective defense strategy in product liability litigation, it is important to understand why it is that jurors notoriously hold corporate defendants to unreasonable and sometimes impossible safety standards. Jury research sheds light on the topic and has consistently shown that perceived deficits in safety is one of the most influential and frequently repeated themes jurors rely on as a moral justification to support a plaintiff’s verdict and high damages. This is particularly true in product liability litigation because the jurors, as consumers of products, can typically identify with the injured party and they want to believe they and their loved ones are going to be safe. Obvious as this may seem, in the minds of jurors, in the context of litigation, “safety” goes much deeper than what one might expect and it starts with their beliefs and perceptions about corporations.

Jurors’ perceptions of corporations

Most jurors do not view corporations as a collection of normal, everyday, imperfect, men and women doing the best jobs they can employed as a group within a corporation. This is especially true in the context of the courtroom, when the first half of a lawsuit is filled with everything the greedy corporate defendant did to endanger the plaintiff specifically and the public generally. Jurors recognize that as consumers they have no choice but to trust their safety and well-being with corporate decision makers, which causes them to feel vulnerable, powerless, and at the mercy of Corporate America. From this perspective, jurors see corporations as single monolithic entities of great wealth, knowledge, history, power, and influence with seeming unlimited resources. But it goes even further than that. In jurors’ minds, corporations often take on qualities of omniscience and omnipotence, which elevates the moral, ethical, and legal duties of corporations from “reasonable” standards to standards that are impossible and unrealistic such as “exceptional” or “perfection.”

The following actual quotes from recent product liability mock trial deliberations illustrate juror thinking in terms of corporate omniscience and omnipotence:

Omniscience  “Safety, that’s your number one priority. They should have thought outside the box, and you have to be innovative about safety procedures to prevent anything from happening… They should have taken into consideration anything that could happen.”

Omnipotent  “And the company didn’t do anything to ensure that their customers had read and understood that they were to install a cage or use the cable, or anything. They didn’t do anything except put it in a manual, and that’s it. As far as I was concerned, that’s not good enough. That wasn’t at all good enough. They need to do something else and then make sure that whoever they are selling the product to is following or doing something or at least agrees to do something."

It is in this context that juror expectations of product safety can take on seemingly unreasonable characteristics and plaintiff’s attorneys can achieve juror acceptance of propositions such as, “products should be as safe as possible,” “products testing should be exhaustive,” “warning labels should warn of all possible dangers,” “product manuals should warn against all possible misuse of a product,” and “products should be 100% safe.” Also, jurors will believe there was “more” a corporate defendant could have done to make its product safer or to protect the public from danger and harm – “one more word on the warning label” “one more meeting with the end user,” “one discussion with distributors,” “one more safety mechanism,” “one more redundancy,” “one more test,” and anything less than “the safest choice” by a corporate defendant is by definition negligence and potentially reckless.

With this understanding of what safety can mean to jurors, here are a few of the strategies product liability defendants must not forget:

  • Safety should be a key theme that permeates the defense case.

  • Defense witnesses must undergo cognitive and emotional deposition training to teach them how to avoid getting trapped into accepting and adopting unrealistic, unreasonable, and impossible safety rules propositions.

  • Defense witnesses must be prepared to frame their deposition and trial testimony with safety as a key feature -- all witnesses must be consistent.

  • Mock jury research is the best way to learn how jurors will react to case-specific safety issues.

  • Voir Dire and jury selection strategies must be designed to uncover potential jurors in the venire who are prone to believing that corporations are omnipotent and omniscient and who will expect corporations to meet impossible and unrealistic safety standards.

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