Monday, January 21, 2008

Take Our Third Thesis -- Please!

We've twice previously (here and here) posted ideas for research that we just didn't have time to pursue. And we know that someone picked up on at least one of those thoughts and completed the project.

We have another idea. (That's three ideas in a year; we're feeling pretty good about ourselves.)

So take our third thesis -- please!

It strikes us that the plaintiffs in pharmaceutical product liability cases are always striking the educated jurors. Surely that suspicion can be tested empirically.

To our eye, here's what happens in our cases: The court calls in 70 or 80 folks as the jury pool. The judge then says that the trial will last three or four weeks, and asks if that would pose a hardship for anyone. At that point, we lose most of the jurors we'd like. The doctors, nurses, pharmacists, and Ph.D.'s all say that they can't leave their jobs for a month, and the judge excuses them. We're left with retirees, the unemployed, and union members, which, in a complex case, is a venire that often favors the plaintiffs.

But here's what really frosts us: If we're lucky enough to have one health care professional -- who we'd love to keep on the jury -- survive the preliminary screening, then the plaintiff inevitably strikes that person. Our sense is that plaintiffs typically prefer less-educated juries, and, in particular, routinely strike health care professionals from serving on juries in pharmaceutical and medical device product liability cases.

But why trust our anecdotal experience?

Surely some scholar could identify a cross-section of drug and device product liability cases and then examine court records to see if we're right. A motivated academic could check empirically to see whether plaintiffs' counsel systematically strike educated (or health-care-educated) jurors more often than defendants do.

If that's true, wouldn't it tell us something about the jury system?

We're not saying that more educated people are smarter than less educated people; Lord knows, we've met people with little formal education, but remarkable street smarts.

As a general rule, however, if you'd like a jury to decide scientific issues correctly, wouldn't you prefer to have scientifically knowledgeable decision-makers?

If plaintiffs are routinely dumbing down juries, wouldn't that tell us something about which side is pursuing truth and which side is playing on emotions and trying to avoid the scientifically correct result?

To date, we have only our strong sense that plaintiffs' counsel in our cases regularly strike the best-educated jurors. But we'd sure be interested to see our suspicion put to the test, so we'd know the empirical answer to that question.

If the idea grabs anyone, then take our thesis -- please!

We only ask that, when you publish the results, you tell us what you've learned.


Anonymous said...

Let's assume that this is true. What's the point? Do you think this is a problem that requires a solutions? People with less education sometimes have more education when it comes to deciding between right and wrong. You seem to offer up the requisite allowance for the possiblity before going back to the "we need smarter juries" mantra. Generally speaking, in broad generalities which is often all we have to go on in picking jurors in many states, people with less formal education have suffered more and indentify more with vicims than people of higher education. Similarly, health care professionals are - again generally - more inclined towards drug and medical device companies.

You try like heck to avoid it and you guys otherwise hardly come off as elitist in this blog but this post has a smug "smart people are with us and this means someting" tone that I think is false.

Also remember that neither side picking a jury is looking for an impartial jury. In fact, it is malpractice to do so. We are all looking for who with thing is predisposed to be with us.

Anonymous said...

Disclosure: I am not a lawyer or plaintiff and have no financial
interest in pharma or device companies. I am an academic (Ph.D.) who
teaches about ethics and policy related to pharma at a "major" (by most
counts) university. Other relevant facts: Two Harvard degrees, Phi
Beta Kappa, licensed in two different healthcare specialties. Against
FDA preemption but definitely not anti-pharma.

Re: juries, a small point and a larger one.

I don't have the empirical study that is suggested. Many jury
consultants, of course, recommend the "analytical juror" in liability
cases. That would include a much larger pool than MDs, PharmDs, PhDs,
etc. (My wife, who owns her own business and analytically does our
taxes, can out-Cartesian most anyone I know.)

To focus especially on healthcare professionals (as the examples in the
post suggest) would, I think, skew the results from the start.
Certainly MDs and PharmDs tend to be anti-liability litigation in
general, for reasons of guild interest. In most cases, there has also
been long and mutually fruitful association with industry. So the
thesis as proposed could certainly not demonstrate that science and
reason were being excluded. Historian Paul Starr famously said: "The
dream of reason did not take power into account." Neither would the

Larger point: Medicine and pharma have never existed in a vacuum. I've
taught the Holocaust for thirty years. As is well known, both
professions played a central role - for medicine, perhaps _the_ central
role - in facilitating the genocide. Part of Auschwitz was run by two
pharm companies whose names we know well. And there were many, many
Ph.D.s in several disciplines - scientific and otherwise - who led the
Einsatzgruppen (killing battalions) when Hitler invaded the Soviet
Union in 1940.

Extreme examples, yes. But the point, again, is that one must be
extremely careful when one invests _any_ group - and perhaps the
professions especially - with a relative surplus of objectivity and
reason. Once again, Paul Starr had it right: One must also take power
into account.


Ted F. said...

If I were to look at this (and I hope to), I'd want to split it up into six categories: high-school dropout, high-school educated, college (with a split between liberal arts and science/engineering/economics), and graduate degree (again with the subject-matter split).

I agree with the commenter that a plaintiff might generally have reasons for excluding a health-care professional other than fear of knowledge--but given the number of doctors who despise the pharmaceutical industry, there no a priori reason to think that plaintiffs would be more likely to seek to exclude health-care professionals than defendants. But this would be a confounding effect if one were to look solely at health-care professionals and seek to draw conclusions.

The question is not "Should the uneducated be barred from juries" but "Do the current voir dire rules skew results by skewing juries to be disproportionately uneducated?" And I think it does mean something if the trial bar is systematically excluding those most likely to critically examine the claims of both sides. If I have a good factual case, I want the smartest jurors I can possibly have so I don't have to worry about the other side distracting the search for truth with irrational emotional appeals—especially when courts do not do enough to preclude attorneys from using such tactics.

Anonymous said...

I disagree that you want more educated jurors if you have a good case. A plaintiffs' lawyer often wants a less educated juror in cases where liability is a slam dunk. Again, people who are less educated are generally - GENERALLY I SCREAM - more sympathatic to suffering than those who are more educated who have suffered less. This is the driving variable. To say that "smarter" people are more likely to make the right call is wrong if you equate smart to educated. Someone one famously (although not famously enough that I remember who said it) that they would rather have a case decided by the first nine names in a phone book than the Supreme Court. I disagree. But there is some truth to it.

PhD said...

For the cases of relevance here, people with knowledge of study design - the "significance of significance," all the ways studies can be skewed or not, the range of interpretive possibilities, etc., etc., would probably be at least part of an ideal group. But how many such people are there?

In my view, most clinicians are _not_ well versed in study design and interpretation. It's a very minor part of their training in most instances, and one quickly forgotten.

Thus any field - from accounting to engineering and beyond - in which data must be assessed in quantity and quality, would be good picks from a purely "skills" perspective.

mythago said...

What a masterful example of the lawyer's art this post is. Under the pretense of calling for an impartial study, it's really an argument that defense lawyers are always in the scientific and moral right, because those dastardly plaintiffs sabotage juries.

Particularly clever is the conflation of "educated people" with "medical professionals sympathetic to the defense". I do have to say that the some-of-my-best-friends-lack-degrees defense is a pretty poor counter to the rest of the post's arrogant assumption that a degree is a measure of intelligence, ability to follow the law, impartiality or just plain smarts.

If we're going on anecdotal experience, though, my experience as a plaintiffs' lawyer is that the defense strikes an awful lot of educated people, even (and sometimes especially) people with Ph.D.s or scientific backgrounds. They do like medical practitioners because doctors and nurses hate lawyers and assume every lawsuit is bogus (see Dr. Flea's interview over at Eric Turklewitz's blog). But medical researchers and scientists? Not so much.

mythago said...

And responding to Ted's post, educated jurors are perfectly capable of being swayed by emotional and illogical arguments--which, if you were being honesty, you would admit are a standard part of the defense repetoire. ("All lawsuits are frivolous and filed by greedy liars" is not a logical, scientific argument. Nor is "My client is an honest, family-owned company being picked on by these evil lawyers.")

I'd take a compassionate, thoughtful doctor in a heartbeat over a high-school dropout who thinks "if you got hurt, it must have been your fault somehow". But I know the defense will strike the doctor and keep the dropout in a heartbeat.