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Hindsight Bias of Juries in Hindsight Bias of Juries in Personal Injury Actions

Courtroom Strategies to Minimize Negative Effects of Hindsight Bias

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURS DAY, AUGUS T 25, 2011

Today’s faculty features: Daniel Cooper, Esq., President, LitStrat, Inc., New Y

• rk

Christopher G. Campbell, Partner, DLA Piper, New Y

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Sacking the Sacking the Monday Morning Quarterback:

_________________________________________

T kli Hi d i ht Tackling Hindsight Bias in Failure‐to‐Warn Cases

Strafford Webinar August 25, 2011

6

Speakers

Daniel J. Cooper

• President LitStrat Inc (New York NY)
• President, LitStrat Inc. (New York, NY)
• Jury consultant on hundreds of cases including

intellectual property, antitrust, securities, employment, products liability, professional malpractice, fraud, and products liability, professional malpractice, fraud, and contract litigation

• DanielCooperEsq@litstrat.com

Christopher G. Campbell

• Partner, DLA Piper (New York, NY)
• Represents leading domestic and international

pharmaceutical companies and other manufacturers in product liability cases in the U.S. and abroad.

• Christopher.Campbell@dlapiper.com

7

Wh t I Hi d i ht Bi ? What Is Hindsight Bias?

8

9

“Hi d i ht bi i th t d “Hindsight bias is the tendency to overestimate the probability of to overestimate the probability of a known outcome and the ability f

• f decision makers to have

foreseen it.” foreseen it.

Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 62.

10

A Preview …

11

Hypothetical

• Heather, wife and mother,

has Type I diabetes

• Tries a new daily injection

medicine, BYTANOL, made by Lorell Pharmaceuticals y

• After a few months, Heather

begins periodically losing f li i h d l feeling in her arms and legs

12

To be continued …

13

Agenda

• 1. Background

2 Legal Framework

• 2. Legal Framework
• 3. Hypothetical
• 4. Practice Points

a Discovery

• a. Discovery
• b. Jury Selection

c Trial

• c. Trial
• d. Jury Instructions

14

Agenda

• 1. Background

15

“Th h b i i “The human being is never

• impartial. He is biased by

p y everything he has experienced, suffered and seen ” suffered, and seen.

Harry Lipsig (1901‐1995) “The King of Torts”

16

17

Thinking Habits

“Social psychologists have found that bias exists as a natural part of social information processing and is present in everyone. They have found that assessing bias is usually found that assessing bias is usually a question of degree rather than whether it actually exists.” whether it actually exists.

Richard C. Waites, Courtroom Psychology and Trial Advocacy (2002), at 281.

18

All data points are not equal, and we don’t l k h l bl d always pick the more valuable data.

A few examples:

• The disproportionate impact of the first
• The disproportionate impact of the first

impression

• The value of a personal (anecdotal) experience
• The value of a personal (anecdotal) experience
• Diagnosis bias
• Hindsight bias
• Hindsight bias

19

Thinking Habits

“When seeking out the values, g attitudes, and beliefs most influential in a decision maker’s story process, it can be helpful to keep in mind that p p these habits in our thinking are just

• that. Habits. They do not function

by conscious will, nor did they get by conscious will, nor did they get attached to our prior life experiences because we deliberately decided to pin them there ” pin them there.

Eric Oliver, Facts Can’s Speak for Themselves (2006), at 33.

20

Influencing Thinking Habits

“People cannot consciously control People cannot consciously control unconscious thinking habits, whether they are aware of them or not. So isolating unconsciously formed and maintained associations only to i t t t t instruct a person or group to stop using them, will fail in most cases and

• ften make things worse ”
• ften make things worse…

Eric Oliver, Facts Can’s Speak for Themselves (2006), at 53.

21

Thinking Habits g vs. Biased Thinking

22

Overestimating Foreseeability

“[N]egligence liability hinges on [N]egligence liability hinges on foreseeability: the perceived likelihood of the harm ex ante, before h id B j the accident occurs. But jurors decide the case after the accident has already occurred. … The hindsight already occurred. … The hindsight bias predicts that jurors will

• verestimate the foreseeability of

th id t d t d t h ld th the accident and tend to hold the injurer liable for not foreseeing that his or her conduct would lead to harm.”

Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 53.

23

The Hindsight Bias Effect

“The hindsight bias is one of the The hindsight bias is one of the most consistently replicated effects in the cognitive effects in the cognitive psychology literature and has proved fairly resistant to proved fairly resistant to attempts to reduce its impact (debiasing) ” (debiasing) ….

Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 62‐64.

24

A Useful Tool for Jurors

“The Legal rules may ask jurors to The Legal rules may ask jurors to gauge the reasonableness of the parties’ conduct from an ex ante rather than from an ex post perspective, but jurors have little ti ti t d Th t motivation to do so. … The outcome is what really happened, and taking it into account will help me to reach a into account will help me to reach a just decision about responsibility for what happened.” pp

Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (2001), at 105

25

Influencing Hindsight Habits

“Most people can’t forget the known p p g

• utcome of the events in a case story

when going back and reviewing how those events first occurred. … “Nonetheless … Research has been d h th t hi j t done on whether teaching jurors to consciously try to see things as the parties saw them, ‘at the time’ can help alleviate the effect of the biased view of the story, and it can.”

Eric Oliver, Facts Can’s Speak for Themselves (2006), at 80 (citing M.L. M.L. Pitera Pitera (Nee’ (Nee’ Stallard Stallard) Ph.D. and ) Ph.D. and D.L. Worthington, “Reducing the Hindsight Bias Utilizing Attorney Closing Arguments,” D.L. Worthington, “Reducing the Hindsight Bias Utilizing Attorney Closing Arguments,” Law and Law and Human Behavior Human Behavior 22 (1998) 671 22 (1998) 671‐ ‐683 683.

26

Agenda

• 1. Background
• 2. Legal Framework

27

Failure­to­Warn Claims

The lack (or inadequacy) The lack (or inadequacy)

• f a warning renders the

d t d f ti product defective.

See, e.g., Peterson v. B/W Controls, Inc., 366 N.E.2d 144, 147­48 (Ill. 3d Dist. 1977).

28

Examples

Chainsaws Sleep Aids

29

Pharmaceutical Cases

30

Failure­to­Warn Claims

Elements

1 Danger exists requiring a

• 1. Danger exists requiring a

warning; 2 Defendant knew or should have

• 2. Defendant knew or should have

known of the danger; 3 A different warning if heeded

• 3. A different warning, if heeded,

would have eliminated the danger; and g

• 4. Plaintiff would have heeded the

alternative warning.

See, e.g., Peterson v. B/W Controls, Inc., 366 N.E.2d 144, 147­48 (Ill. 3d Dist. 1977).

31

Failure­to­Warn Standard

Knew Knew Should Should Have Have Known Known Known Known

See, e.g., Anderson v. Owens‐Corning, 810 P.2d 549 (Cal. 1991).

32

Failure­to­Warn Standard

• Objective, turns on

actual facts

• What did the company

actually know at the time of the plaintiff’s i j ? injury?

• Less susceptible to

Knew Knew

hindsight bias

• Defense friendly

33

Failure­to­Warn Standard

• Subjective, facts are

j ,

• pen to interpretation
• What might the
• What might the

company have known, if it had done more (or ( was a good company)?

• Highly susceptible to

Should Have Known Should Have Known

g y p hindsight bias

• Plaintiff friendly

34

Foreseeability Foreseeability

Was the plaintiff’s injury foreseeable? injury foreseeable?

35

Other Legal Areas

Patent Law W th t h l Negligence Law W th h d

• Was the technology

new and not obvious?

• Was the hazard
• pen and obvious?

36

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical

37

Back to the story …

38

Hypothetical

• Heather, wife and mother,

has Type I diabetes

• Tries a new daily injection

medicine, BYTANOL, made by Lorell Pharmaceuticals y

• After a few months, Heather

begins periodically losing f li i h d l feeling in her arms and legs

39

Hypothetical

• After taking BYTANOL for seven

months, Heather collapses in her garage one afternoon garage one afternoon

• After being rushed to the

hospital, Heather is found to be paralyzed from the neck down

40

Hypothetical

• Doctors eventually move Heather

to a specialized nursing home 45 to a specialized nursing home 45 miles from her family’s home

• Due to distance and increasing

financial burden, her family can

• nly visit once a week

41

Hypothetical

• One year after Heather’s

paralysis Lorell Pharmaceuticals paralysis, Lorell Pharmaceuticals publishes new study data showing BYTANOL may cause paralysis in some patients

Movement Disorders Attributed to Bytanol

paralysis in some patients

• The FDA immediately requires a

boxed warning for paralysis

John Riley [john.riley@lorell.com] Tuesday, July 28, 2010 Thomas Wetzel [thomas.wetzel@lorell.com] RE: Label Change

g p y

42

Hypothetical

• Company documents show

internal scientists were internal scientists were concerned about a risk of paralysis four years earlier

• Since BYTANOL came on the

market, there have been 18 patient reports of paralysis p p f p y

43

Hypothetical

• Heather’s family meets with
• Dr. Lucas, who prescribed

, p BYTANOL to Heather

• Dr. Lucas tells them, had she

k b h l i i k known about the paralysis risk, she would never have prescribed BYTANOL

44

Hypothetical

• Heather and her husband

file suit for failure to warn

• They seek $75 million in

t d iti compensatory and punitive damages

45

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical
• 4. Practice Points
• a. Discovery
• b. Jury Selection

y

• c. Trial

d Jury Instructions

• d. Jury Instructions

46

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical
• 4. Practice Points
• a. Discovery

47

Company Discovery

Create a story through discovery that transports j b k i ti jurors back in time.

48

Why a Story?

“Because stories persuade at Because stories persuade at the subliminal level by using the concept of vividness They the concept of vividness. They involve the audience. … The story empowers the speaker by story empowers the speaker by making the presentation easier and enlivens by making facts and enlivens by making facts fun.”

Jim Perdue, Winning with Stories (2006), at 20.

49

Discovery

Company Fact Experts

50

Company discovery starts … behind the eight ball behind the eight ball

51

That’s because …

MORE! MORE! MORE! MORE!

Jurors hold pharmaceutical i t t d d f Plaintiffs can always argue th t th h ld companies to a standard of near omniscience. that the company should have done more.

52

Company Discovery

S i h h h

• Start with the truth
• Look at the facts not as a

Look at the facts not as a lawyer, but as a historian

• Identify key events,

people, and documents p p

• Put them on a timeline

53

Company Documents

• Often the toughest part of

g p the defense case

• Focus on documents that
• Focus on documents that

show historical context

• Examples: Communications

with the FDA, continued d f ff drug safety efforts

• Look outside the company

p y

54

Company Witnesses

• Hindsight bias affects company

witnesses, too

• Prepare witnesses to put their

testimony in proper context

• Consider direct examinations
• f company witnesses to frame
• f company witnesses to frame

any concerning issues

55

Hypothetical Timeline Hypothetical Timeline

Company E‐mails Discuss P l i Ri k Animal Studies h Paralysis Risk Studies in a Animal Studies Contradict Risk FDA Rejects P l i Heather Paralyzed Similar Drug Shows No Risk FDA Rejects Proposed Warning

• n Lost Feeling in

Extremeties Paralysis Risk Publicized

Clinical Trials Preclinical

1997 2009 2011 2005

56

Fact Discovery

• Hindsight bias applies to

g pp fact witnesses, too

• Actions speak louder than
• Actions speak louder than

words

• Use actual behavior

at or before the time of h i i the prescription to undermine hindsight claims claims

57

Hypothetical Prescriber

• Dr. Lucas claimed that, had she

known about the risk she would known about the risk, she would never have prescribed BYTANOL

• In deposition, however, she admits:

p , , (1) she prescribes other drugs with boxed warnings; (2) she prescribes other drugs with a paralysis risk; (3) she refilled another patient’s BYTANOL prescription after the l i i k k paralysis risk was known

58

Hypothetical Plaintiff

Heather Oglivy

Heather claimed that if she had

• Q. Were you aware that the label of the

blood pressure medication that you are currently taking includes a boxed

• Heather claimed that, if she had

known about the paralysis risk, she would never have taken

currently taking includes a boxed warning about a risk of heart attack?

• A. Yes.

Q Y t k th t di ti th h

BYTANOL

• She has a history of smoking
• Q. You took that medication even though

there were other products on the market that did not have the same warning?

• Pharmacy records also reveal

that she took other medications with boxed warnings

g

• A. I guess.

with boxed warnings

59

Expert Discovery

• Hold plaintiff experts to the

“knew” or “should have known” standard

60

Hypothetical Expert

“Knew” “Should Have Known”

• When did they know?
• Who knew?
• When?
• Who?
• Who knew?
• How did they find out?
• Who?
• What basis?
• What did they know?

Did k h ?

• What should they have

done?

• Did you know then?

done?

61

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical
• 4. Practice Points
• a. Discovery
• b. Jury Selection

y

62

Voir Dire and Bias

• Ideal v. Actual

Obj i O i

• Objective v. Opportunity
• Priorities v Practice
• Priorities v. Practice

63

Preparation Introduction: Juror Characteristics Jury Duty Dangerous Products Ci tt C i Parental Responsibility Sympathy & Impartiality

Defense Voir Dire

Cigarette Companies Parental Responsibility Smoking & Addiction Asthma S dh d S k g Asthma Negative Experience Secondhand Smoke with Cigarettes

64

Voir Dire Basics

• Connect

C i

• Communicate
• Challenge
• Challenge

65

Voir Dire Tips

• Begin to teach jurors the value of hindsight
• Begin to teach jurors the value of hindsight

bias – (connect) (connect)

• Ask questions that allow jurors to talk about
• Ask questions that allow jurors to talk about

their personal experiences of over valuing hindsight – (communicate/converse) (communicate/converse) g ( / ) ( / )

• Identify jurors, especially leaders who are

unwilling or unable to recognize the threat g g

• f mis‐using hindsight (challenge)

(challenge)

66

Hypothetical Jury Selection

• Evaluate a potential juror’s ability

to assess past conduct by asking to assess past conduct by asking questions such as:

• Have you ever made a

decision, based on information you learned later, you wish you could take back?

• Identify potential jurors who

cannot overcome hindsight bias by asking q estions s ch as asking questions such as:

• Would you agree that

hindsight is 20/20? g /

67

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical
• 4. Practice Points
• a. Discovery
• b. Jury Selection

y

• c. Trial

68

Trial Strategy

Tell your story and tackle Tell your story and tackle hindsight bias head­on. hindsight bias head on.

69

K th tli ht K th tli ht

Shine the spotlight on the plaintiff

Keep the spotlight on Keep the spotlight on the plaintiff the plaintiff

Shine the spotlight on the plaintiff

Jim Perdue, Winning with Stories (2006), at 20.

70

Opening Statement

• Address hindsight bias up front
• Don’t ask jurors to ignore it –
• Don t ask jurors to ignore it

but to work to keep the bias in check

• Then tell your story in a way

that transports jurors back in time time

• Put jurors in the shoes of the

company scientists and company scientists and executives at the relevant time

• Put plaintiff’s and prescriber’s

conduct in historical context

71

Plaintiff’s Case Plaintiff’s Case

• Use cross‐examination to
• Use cross examination to

confront hindsight bias

• Always put the plaintiff’s
• Always put the plaintiff s

evidence in historical context F l h

• For example, point out the

expert’s data was not available i i h to company scientists at the relevant time

72

Hypothetical Demonstrative

Clinical Trial Observational S d Animal Study Study Observational Clinical Trial When Company Clinical Trial Observational Study Case Report In Vitro Study When Company Allegedly “Should Have Known” Trial Case Report Case Report p

1997 2011 2005

73

Defense Case

Fact Witnesses C it t Expert Witnesses C dd th

• Company witnesses to

tell the story and recreate the relevant

• Can address the

subject of hindsight bias head on recreate the relevant conditions

• Treating doctors can

bias head­on

• Offer the perspective
• f o tside obser ers
• Treating doctors can

show no knowledge of risk in medical

• f outside observers
• Validate the company’s

i i t risk in medical community viewpoint

74

Closing Argument

• Repeat your themes
• Remind jurors again about
• Remind jurors again about

the perils of hindsight bias T k ll h id d

• Take all the evidence and

put it in the proper context

75

Agenda

• 1. Background
• 2. Legal Framework
• 3. Hypothetical
• 3. Hypothetical
• 4. Practice Points
• a. Discovery
• b. Jury Selection

y

• c. Trial

d Jury Instructions

• d. Jury Instructions

76

Crafting Jury Instructions

• Jury instructions are the

J y final word

• Ask that they directly or
• Ask that they directly or

indirectly address hindsight bias g

• Consider requesting pre‐

trial jury instructions on j y this issue (if for no other reason than to pre‐ condition the court)

77

Sample Jury Instructions

Minnesota Minnesota “A manufacturer’s duty to provide reasonably adequate provide reasonably adequate warnings must be judged according to the scientific according to the scientific knowledge and advances that existed at the time the product was designed.”

4A Minn. Prac., Jury Instr. Guidelines – Civil 75.25 (5th ed.) – The Duty to Warn

78

Sample Jury Instructions

California California “A manufacturer has a duty to warn if the danger was known warn if … the danger was known

• r knowable in light of the

generally recognized and generally recognized and prevailing best scientific and medical knowledge available at g the time of the manufacture and distribution.”

• Cal. Civ. Jury Instr. 9.00.7 – Failure to Warn

79

Sample Jury Instructions

New York New York “If you find that, at the time the product was marketed the product was marketed, the safety warnings accompanying the product were adequate, then the product were adequate, then you will find that the product was not defective ….”

New York Pattern Jury Instr. 2:120 – Strict Products Liability

80

Concluding thoughts …

81

Resources

• Philip G. Peters, Hindsight Bias and Tort Liability: Avoiding

Premature Conclusions, 31 Ariz. St. L. J. 1277 (1999) D b L W thi t t l Hi d i ht Bi D b t d th

• Debra L. Worthington et al., Hindsight Bias, Daubert, and the

Silicone Breast Implant Litigation, 8 Psychol. Pub. Pol’y & L. 154 (2002)

• Donald S. Davidson & Marie K.N. DeBonis, Overcoming the

Effects of Hindsight Bias, N.Y. L.J. S4, Col. 1, Oct. 14, 2003

• Kimberly Eberwine, Note, Hindsight Bias and the Subsequent
• Kimberly Eberwine, Note, Hindsight Bias and the Subsequent

Remedial Measures Rule: Fixing the Feasibility Exception, 55 Case W. Res. L. Rev. 633, 652­55 (2005)

• Terrence W Campbell Commentary: Open & Obvious:
• Terrence W. Campbell, Commentary: Open & Obvious:

Considerations of ‘Hindsight Bias,’ Mich. L. Wkly., 2005 WLNR 24503096, Feb. 14, 2005

• Gregory N. Mandel, Does Hindsight Bias Affect Obviousness

Rulings?, Nat’l L. J. S2, Col. 1, Aug. 18, 2008

82

Questions?

83