For The Defense, October 2010 - DRI Today

D R U G A N D M E D I C A L D E V I C ESacking the MondayMorning QuarterbackBy Loren H. Brown,Daniel J. Cooperand Christopher G. CampbellTackling HindsightBias in Failureto-WarnCasesExamining thispsychological tendencyand offering practical tipsto mitigate its effects.In his 2003 New Yorker article “Connecting the Dots,”Malcolm Gladwell resurrected the term “creeping determinism”to describe hindsight bias. Creeping determinism,he wrote, is “the sense that grows on us, in retrospect,that what has happened was actually inevitable.”Malcolm Gladwell, New Yorker, Mar.10, 2003. Psychologist Baruch Fischhofforiginally coined the term. Gladwell tells ofFischhoff’s 1960s experiment in which, onthe eve of President Nixon’s visit to China,Fischhoff asked a group of people about theprobability of the trip’s success. After Nixon’strip received accolades as a diplomaticvictory, Fischhoff went back to those samepeople and asked them to recall their ownpredictions. Fischhoff reported that, overwhelmingly,the subjects “remembered”being more optimistic than they had actuallybeen. Those who had predicted a lowlikelihood that Nixon would meet withMao, for instance, recalled after knowingthat the meeting had occurred that■ Loren H. Brown is co-chair of DLA Piper’sproduct liability practice and a partnerin the firm’s New York City office, where hespecializes in pharmaceutical and mass tortlitigation. Daniel J. Cooper is presidentof LitStrat Inc., a jury researchand litigation consulting firm basedin New York City. Christopher G.Campbell is a partner in DLA Piper’sAtlanta office, where he specializes inproduct liability litigation.they had predicted its likelihood as high.After gathering the results of this experiment,Fischhoff wrote, “The occurrence ofan event increases its reconstructed probabilityand makes it less surprising than itwould have been had the original probabilitybeen remembered.” Id.Others have recognized this phenomenonin jurors. In his book Legal Blame: HowJurors Think and Talk About Accidents,Neal Feigenson observed that in jurors, aswell as in the population generally, “hindsightbias is one of the most consistentlyreplicated effects in the cognitive psychologyliterature and has proven fairly resistantto attempts to reduce its impact.” NealFeigenson, Legal Blame 62 (APA 2001).We face the challenge of eliminating orat least mitigating hindsight bias in jurorsas defense lawyers in failure- to- warn cases.Whether you call it creeping determinism,Monday morning quarterbacking, or simplyhindsight bias, as we will here, this psychologicaltendency presents a significantobstacle in failure- to- warn cases. This isparticularly true in pharmaceutical productliability cases. Jurors have been knownto hold manufacturers to standards of nearomniscience when drugs or devices havebeen accused of causing or contributing tohorrific injuries or deaths.For The Defense n October 2010 n 15