11.07.2015 Views

For The Defense, October 2010 - DRI Today

For The Defense, October 2010 - DRI Today

For The Defense, October 2010 - DRI Today

SHOW MORE
SHOW LESS

You also want an ePaper? Increase the reach of your titles

YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.

about the potential harm that the plaintiffsuffered. After the fact the addition to thelabel seems so simple to accomplish andis typically reinforced by the prescriberand the patient testifying that the changewould have mattered to them in their riskbenefitanalysis. Even if not taken quite sofar, the plaintiff, at a minimum, readilysuggests that the absence of the remediallanguage led the patient to believe that theprior warning did not apply to him or her.“Why not say more sooner? Why not domore if it might protect even one patientfrom the harm suffered by this plaintiff?That’s what a company that places healthover profits would do, isn’t it? Why nothere?” are often questions posed by a plaintiff’scounsel for jurors hoping to lead jurorsto conclude that it was the absence ofwill and good intentions, not the absenceof knowledge, that motivated the labelingchoices of a company.With evidence of fairly simple remedialsteps, juries may be more inclined to ignoreother evidence on the extensive researchand testing results that led a company toconclude a product exhibited no evidenceof a risk, because they know that the injuryoccurred, and the company later warned ofthe potential for this injury. See, e.g., Eberwine,at 655–58 (discussing the magnifyingeffect of subsequent remedial measuresevidence on hindsight bias in juries). <strong>The</strong>reis often no good reply to the question, whywasn’t more done sooner, why didn’t thecompany discover the risk before it wastoo late for this plaintiff? Thus, evidence ofsubsequent remedial measures directly increasesthe impact of hindsight bias in juriesbecause it supports the assumption thatthe defendant should have known of andwarned about the injury from the outset.Hindsight Bias in Other Areas<strong>The</strong> effects of hindsight bias are not limitedto failure- to- warn cases, and it is worthtaking a moment to discuss some of thoseother areas. See, e.g., Donald S. Davidsonand Marie K.N. DeBonis, Overcoming theEffects of Hindsight Bias, N.Y. L.J. S4, Col.1, Oct. 14, 2003; see Kimberly Eberwine,Note, Hindsight Bias and the SubsequentRemedial Measures Rule: Fixing the FeasibilityException, 55 Case W. Res. L. Rev.633, 636–37 (2005). Two areas that presentvaluable examples of the effects of hindsightbias can be found in patent and negligencelaw.In patent cases, hindsight can affect theissue of obviousness. A lack of obviousnessis one of the key requirements of patentability—thatthe technology in questionwas new and not obvious at the time ofthe invention. It is not difficult to imagine,however, that once a new inventionexists, stepping back in time and assessingwhether it was obvious invites hindsightbias. <strong>For</strong> instance, in KSR Int’l Co. v.Teleflex Inc., 550 U.S. 398, 399 (2007), theU.S. Supreme Court ruled that an inventor’smodification of an existing gas pedaldesign was an obvious change and, therefore,not deserving of patent protection. Itis easy to imagine how, when similar issuescome before a jury, hindsight bias mightaffect the outcome. Once the matter comesbefore a jury, the technology actually doesexist, and the jury is made of aware ofthe process by which the technology wasinvented, thereby potentially leading manyjurors to view the invention as more obviousthan it was at the time of its development.Gregory N. Mandel, Does HindsightBias Affect Obviousness Rulings?, Nat’l L.J.S2, Col. 1, Aug. 18, 2008.Courts and counsel dealing with theseissues in patent cases have suggested waysto mitigate hindsight bias in that context.<strong>For</strong> example, in KSR v. Teleflex, the U.S. SupremeCourt discussed a “teaching, suggestionor motivation” approach in whichthe patent is only proved obvious if priorinformation reveals some motivation orsuggestion that would have generated thetechnology in question. Patent law expertshave also suggested presenting a case thatfocuses on the problem that the inventionsolved. Mandel, Nat’l L.J. S2, Col. 1, Aug.18, 2008.At the core, jurors are often most interestedin the inventor and the inventionstory. While obviousness is the subject ofexpert analysis on the issue of what a personof ordinary skill in the art would have<strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>October</strong> <strong>2010</strong> n 17

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!