Wednesday, October 28, 2009

Confidential Verdicts

I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials.  This is a very curious aspect of the law to me - why shouldn't juries know how other juries have decided cases?  I am not sure where I come out on the question, but consider the following.

There are a lot of complaints that jury verdicts are inconsistent, even random, too high, too low, in any event different from what judges and lawyers think is the appropriate award for a given case.  Studies of historical jury verdicts, like those conducted by Neil Vidmar, show that there is some variability in jury verdicts that is not accounted for by the legally relevant facts of the case.  Surveys like those conducted by Michael Saks et al. demonstrate by and large agreement between judges and lawyers about case valuation, but more variability among lay persons (potential jurors).  Saks attributes this to the fact that jurors don't have a point of comparison, and the way judges and lawyers value cases is comparatively.

So why not give jurors a sense of what other juries have done, and let them decide what they think the appropriate amount of damages is in a given case.  Do we think juries will be too influenced by the number, that it will set a floor or a ceiling on their findings?  If we think variability of jury verdicts is a bad thing then wouldn't giving jurors a sense of other cases help limit that variability except where cases are legitimately different and deserving of different awards?  The doctrine of remittitur permits judges to compare jury verdicts and lower outlier verdicts, so the concept of  comparative valuation isn't foreign to our procedural regime.


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I just read your post and found it interesting.I posted about this topic back on Oct 26, where I took a position similar to you (see Pharma Conduct Blog: Prempro Jury Returns Verdict Against Wyeth/Pfizer am curious why courts rely upon precedent so heavily for matters such as sentencing guidelines or interpretation of the law, but then let juries come up with numbers in a vacuum.Can anyone shed some light on this disparity for me?

Posted by: Eric Milgram | Nov 27, 2009 9:27:44 AM

Re Prempro verdicts - it's about time Wyeth was punished with high punitive damages. they are still trying to win cases. I am one of the plaintiffs and had a mastectomy in 2003. No cancer in my immediate nor extended family. Pathology report shows that the cancer was caused by Prempro and yet it is still on the market except in lower dose - that just means there will be a spike in breast cancer in about 5 years. I don't think women of menopausal age take to keep young (there is no keeping younr) it only helps with the hot flashes. When a drug's ingredient is PREGNANT HORSE'S URINE what do you expect, who tells you this fact - the doctor, no; Wyeth, are you kidding. they should settle this case where they are 100% at fault and didn't give a damn what happened to menopausal women. just you wait!

Posted by: linda norton | Nov 29, 2009 9:42:48 AM

We need tort reform. Jury awards have gotten out of hand and is driving up the cost of all health related services...

Posted by: Settlement California CA | Jan 6, 2010 8:14:27 AM

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