For The Defense, October 2010 - DRI Today

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D R U G A N D M E D I C A L D E V I C EExperts can emphasizethat scientific knowledge isconstantly advancing andthat it is unfair to judgeyesterday’s decisions basedon today’s knowledge.known at the time, the human interest elementis what often grabs the attention ofthe jurors—going back in time with theinventor into the lab or to the researchbench, confronting a real problem, workinghard, failing, and then finally arrivingat a valuable solution. By framing a casein this way, the experts suggest that jurorsare put in a position that is more analogousto that of the inventor at the time ofthe invention, when there was only a problemto solve and no known solution. Id. Asdiscussed below, a narrative that places thejurors in the shoes of the decision makers atthe time of decision making is an approachthat can be useful in failure- to- warn cases.In negligence and medical malpracticecases, hindsight bias can actually favoreither a defendant or the plaintiff, dependingon the facts of the case. Take a typicalslip-and-fall case. If the question is oneof notice—whether the defendant knewor should have known about a particularhazard that caused the plaintiff to fall—then hindsight bias may favor the plaintiff.Jurors may view the fact that the plaintifffell as an event that the defendant shouldhave foreseen. In contrast, if the question iswhether the hazard was so open and obviousthat the plaintiff him- or herself shouldhave seen it, then hindsight bias may actuallyfavor the defendant. See Terrence W.Campbell, Commentary: Open & Obvious:Considerations of ‘Hindsight Bias,’ Mich.Law. Wkly., 2005 WLNR 24503096, Feb.14, 2005. In other words, the fact that theplaintiff fell may lead jurors to overestimatehow open and obvious the hazard truly wasat the time of the injury, when in fact with18 n For The Defense n October 2010only foresight, the same conclusion wouldnot have been drawn. Id.Tips for Tackling Hindsight BiasYou can attack hindsight bias in five particularways: (1) develop a story throughyour defense that transports jurors back intime; (2) use discovery to develop facts tofight hindsight bias; (3) use jury selectionto identify jurors susceptible to hindsightbias; (4) during a trial, attack hindsightbias head-on; and (5) carefully craft juryinstructions.Develop a Story That TransportsJurors Back in TimeJurors respond to stories. The best triallawyers live by this creed. For example,author Jim Perdue in Winning with Storiesexplains, “So, why a story? Because storiespersuade at the subliminal level by usingthe concept of vividness. They involve theaudience. The story uses the schema formatfor storing and organizing information.The story empowers the speaker by makingthe presentation easier and enlivensby making facts fun.” Jim M. Perdue, Winningwith Stories 20 (Tex. Bar 2006). Importantly,stories are easier to remember andrepeat and, as such, become an extremelyuseable tool for jurors in deliberations. Oneinvaluable lesson for defense counsel is,replace stacking facts and arguments witha compelling, integrated narrative.It is critical at the outset of a case, or asearly as possible, to develop a defense storythat will take jurors back in time to the relevantevents or decisions and put thoseevents and decisions in context. For example,if a plaintiff claims that a companyshould have known about a harmful sideeffect, then the defendant needs a narrativethat will transport jurors back to thedrug development phase and allow jurorsto see that process through the eyes of thescientists involved at the time. In viewingthe process from a company’s perspectiveand in the appropriate historical context,jurors will be less likely to fall prey to hindsightbias. In addition, it is important to tella story about a plaintiff’s conduct before,during, and after the plaintiff and a company“collided.” A plaintiff will tell onestory on the stand, but actions speak louderthan testimony, so you must focus jurors onthe plaintiff’s actual conduct at the relevanttimes. Without attacking or explicitly criticizinga plaintiff, and adopting more of anhistorian’s demeanor than an advocate’s,you need to develop and control the characterand decision- making discernment ofa plaintiff. To do that, you need to examinein great detail a plaintiff’s history.This storytelling process should startbefore discovery. When reviewing companydocuments before discovery, forinstance, find those documents that canprovide the necessary historical contextthat show a company’s state of knowledgeat a given time period. The regulatoryrecord documentation, particularly therecord documenting a medication’s label,is a good example. It is important to showjurors how the FDA’s rulings, negotiations,and directions significantly influenced acompany’s decisions and played a key rolein a label’s final content. Ultimately, theFDA is the final arbitrator of a label’s contentand a product’s status in the market.The same principle applies to companywitnesses. When talking to witnesses,make a point of distinguishing betweenwhat the witnesses know now as opposed towhat they knew at the relevant time. Hindsightbias does not only affect jurors. Thereis a very real possibility that company scientistsand safety officers may “remember”in hindsight things that may be detrimentalto your case. For example, if a new sideeffect is revealed after a drug is put on themarket, a company scientist, especially ifhe or she wants to make a name for himorherself, may claim in e-mails to peersthat he or she predicted the side effect yearsbefore the drug was approved, but that hisor her predictions were ignored. You needto take those statements seriously, anddetermining whether they are simply theproduct of hindsight bias is critical. Focuson developing the facts needed to open awindow into the decision- making processthat took place in the laboratory or theboardroom at the time in question. Thismeans spending time with witnesses todevelop the pieces of the puzzle requiredto humanize the story and make it appealingto jurors.Use Discovery to Develop Factsto Fight Hindsight BiasThe story- building process continues duringdiscovery. Depositions will offer one of
your first opportunities to develop witnesstestimony that could mitigate hindsightbias when presented to a jury. In preparingdefense witnesses, it is important tocontinue to stress the importance of historicalcontext. For instance, prepare witnessesto testify in a way that will put theirdecisions and actions in the appropriatehistorical context. Prepare witnesses toask for clarification if a plaintiff’s attorneyasks questions that do not refer to a specifictime period by asking that attorneybefore responding, “What time period areyou asking about?”, or “As of what time?”,which will prevent the plaintiff’s attorneyfrom muddling history and will help keepthe record clear.You should consider engaging in redirectexaminations of company witnesses. Thisis a proactive step through which you canbegin to lay the groundwork for a defendant’sstory. Even a short redirect examinationcan develop testimony that humanizesa witness—something a plaintiffs’ counselwill have no interest in doing—and hopefullywill show that the witness is a realhuman being whose decisions or actionswere based on the best available informationat the time.Affirmative discovery can also advancethe defendant’s story. If you can demonstratethat a plaintiff would not have heededan additional warning, even if furnished,that is another way to tackle hindsight bias.After experiencing a side effect, generallya plaintiff will claim in hindsight that heor she would not have taken a drug if heor she had been warned. The way to defeatthat testimony is to bring up other situationsin which a plaintiff ignored warningson other products, such as smoking, takingother medications with similar warnings,or using other potentially dangerousproducts. If jurors hear that a plaintiff hasa history of ignoring warnings, then theymay approach a plaintiff’s assertions withskepticism.Use Jury Selection to Identify JurorsSusceptible to Hindsight BiasJury selection is always critical to a gooddefense. When it comes to overcominghindsight bias, the jury selection processpresents an important opportunity on atleast two fronts. The first is that you canuse the selection process to begin teachingjurors the value and importance of overcominghindsight bias. Lay the issue onthe table. The saying “hindsight is 20/20”is common, and most jurors will recognizehow hindsight bias enters their dailylives. Use an example of hindsight biasto bring the issue home. From the verybeginning, tell jurors that their responsibilityas fact finders requires viewing thefacts in the appropriate historical context.If the standard is whether the manufacturer“knew or should have known” abouta particular harm, then jurors must understandat the outset that the question thatthey will decide is tied to a particular pointin time and that the benefit of hindsightshould not sway their verdict. It is difficultfor jurors to talk about abstract concepts,values, or hypotheticals. It is easier to conductvoir dire by referring to jurors’ personalexperiences. Consider questions thatallow jurors to talk with you about theirpersonal experiences of assessing past conduct.You will note eliminate hindsight biasby instruction, lecture, or argument. Makingjurors aware of hindsight bias and howit can handicap them in their efforts toreach a correct result is a big enough challengeduring voir dire. Use jurors’ personalexperiences to elicit awareness of hindsightbias, and recognize that some jurors cannotrealistically practice impartiality, regardlessof your efforts to educate them.That means that the other importantaspect of jury selection is to identify thosejurors who are unwilling or unable to setaside their biases, including hindsight bias,to render a fair and impartial verdict. Thereare a variety of techniques to gauge a juror’ssusceptibility to hindsight bias. Decidingwhich techniques you will use will dependon the facts of a case. Approaching theproblem directly it is not particularly useful.Asking jurors directly whether theywill be able to overcome hindsight biasand decide the case based on the informationavailable at the relevant time typicallywill elicit politically correct answers aboutfollowing the judge’s instructions. Themore reliable window into bias, includinghindsight bias, is to explore relevant personalexperiences. So developing voir direquestions that explore jurors’ experiencesinvolving hindsight bias can help you tointroduce questions about hindsight bias.But to be meaningful, you will need to prepareto follow up and probe. Ask a jurorhow he or she felt about that event. Did itresult in a fair decision or an unfair decision?What did the juror learn from theexperience, would he or she approach thesituation differently today, and why, or, ifhe or she would not change a thing, whynot? For example, you might ask, “Haveyou ever made a decision that, based onIt is important to insistthat the instructions includelanguage to mitigatepotential hindsight bias.information you learned later, you wishyou could take back?” Jurors who havebeen hurt by hindsight bias are more likelyto reject it than jurors who have not beenaffected by it. If you chose to use some ofyour voir dire time on hindsight bias, probedeeply enough to know whether and how ithas affected jurors in their own lives in realand concrete terms—not as a mere theoryor hypothetical.Tackle Hindsight Bias Head-OnDuring Your TrialTrial is the time to tell the story of thecase and tackle hindsight bias head-on.An opening statement should build onthe discussion of hindsight bias from juryselection but now introduce the facts of acase. As noted, the key here is to tell thestory so that jurors are transported backin time and can view the facts through theeyes of company scientists, safety officers,and executives who will testify at the trial,as well as view the plaintiff’s conduct andthe plaintiff’s case through the same lens.During the part of the trial when the plaintiff’sattorney makes the plaintiff’s case,use cross- examination when possible tochallenge hindsight bias. For instance, if aplaintiff’s experts rely on some recent datato support their opinions, in your crossexaminationpoint out that the data wasnot available to company scientists at thetime in question.Hindsight Bias, continued on page 86For The Defense n October 2010 n 19
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