By Dr. Ken Broda Bahm:
Medical practitioners know that, for all its wonders, modern medicine is still a matter of chances not guarantees. In other words, in practice, medical interventions are often a matter of improving the patient’s chances at life and quality of life, but not necessarily guaranteeing success at either. That tends to be true in the world of medical devices as well. Today, a wide variety of devices have made life more livable for millions of people. But these devices are not without complication, and do not improve things for everyone. Viewing that through the litigation lens, it raises the question of how we respond when a device that is effective in helping many ends up hurting some.
In our own recent research, we have addressed that question. Our current survey of jury-eligible Americans included a brief medical device scenario, so we were able to not only see how people react, but also to look at what individual differences are effective in predicting those reactions. In other words, we are able to discern which kinds of people are more likely to side with the patient and which with the manufacturer in a simple and hypothetical injury situation. Ultimately, we found three robust and statistically significant predictors of individual reactions, and they may not be what you expect. In this post, I will share the scenario, discuss what didn’t work in predicting leanings, and share the results on what ultimately did work.
The Medical Device Liability Scenario
We wanted a thin-slice reaction to the idea of a prototypical medical device case, so we stayed away from details about the nature of the device and the type of injury. In addition, we probably exaggerated the prevalence of the problem, at least as it applies to most devices. Here is the short vignette we gave to our survey respondents:
A patient had a medical device implanted by a doctor. Following that, the patient experienced a severe injury also experienced by hundreds of other patients, representing about 5 percent of those receiving the medical device. The patient is now suing the manufacturer. Would you, 1. Lean in favor of the patient, 2. Lean in favor of the manufacturer, or 3. Not lean either way?
Predicting the Leaning
We asked this question annually in a five-year span from 2014 to 2018, surveying a total of 1,975 individuals. In response, around two-thirds (67 percent) said they would lean in favor of the patient, while about a quarter indicated they would not lean either way (24 percent). Just ten percent responded in favor of the manufacturer. We used our “BigJury” database, an aggregated collection of survey responses including respondent characteristics, to help illustrate those factors that effectively predict these case leanings.
It May Not Be What You Think
When we’re working on a case and wonder, “What kind of juror will accept or reject this kind of argument?” sometimes our default expectations are driven by demographics: race, gender, age, education. After all, that is the part we can see, for the most part, when we gaze at a pool of potential jurors.
However, our experience is that attitudes tend to far outweigh demographics in predictive power. That is borne out in this case as well. What didn’t make a difference? Gender, race, age, employment status, supervisory experience, experience working at a large company, presidential vote, and education. While we thought it might make a difference in a medical device case, self-reported label reading didn’t make a difference either.
Instead, It’s the Attitudes that Matter
We have identified three key factors that act as statistically-significant predictors of respondents’ initial case leanings:
-
-
-
- Attitudes Towards Corporations. Those with a negative attitude toward corporations are more likely to side with the plaintiff in a medical device dispute. We learned this by comparing leanings in response to the scenario to our own Anti-Corporate Bias Scale, a set of seven questions that we have shown are valid predictors of leanings in a variety of case contexts. The questions (e.g., how often do you believe a large corporation would lie if it could benefit financially from doing so?) can be incorporated into oral voir dire, or included in a supplemental juror questionnaire.
-
-
-
-
-
- Opinions of Testing. Individuals who support more testing of medical devices are more likely to favor the plaintiff’s side of the device case. Out of those respondents who say that medical device manufactures should do much more testing than they do now before placing products on the market, 74 percent favor the plaintiff. Only 54 percent of potential jurors who say manufacturers should perform about the same amount of testing as they currently do favor the plaintiff.
-
-
-
-
-
- Prioritization of Safety or Innovation. Potential jurors who favor innovation over safety are more likely to favor the medical device company. Here, the difference is somewhat narrow, but still significant. Specifically, among those who say innovation should be prioritized when it conflicts with patient safety, 60 percent side with the plaintiff, compared to 68 percent of those who say safety should take priority. On the other side, 15 percent of people who place more importance on innovation say they side with the manufacturer, compared with only 9 percent of individuals who are more safety-oriented.
-
-
It makes sense that attitudes would matter more than anything else, and that these specific attitudes involving companies, testing, safety, and innovation would matter the most in a medical device case. Naturally, the inquiries should be customized to the issues of the individual case, but these three foundational attitudes should be a focus in jury selection.
______
Other Posts on Products Liability:
- Frame Your Medical Device Defense Around ‘Locus of Control’
- The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense
- Take a Moment to Present Your Safe Product Story