How Safetyism Is Driving High Plaintiff Verdicts

Our podcast guests IMS Senior Jury Consulting Advisor Dr. Jill Leibold and Senior Jury Consultant Dr. Nick Polavin share their newest safetyism research and how safetyist beliefs are driving high plaintiff verdicts—especially in medical malpractice, trucking, pharmaceutical, and toxic tort cases. They also explain how defense counsel can use strategic voir dire questions and trial themes to address safetyism in the courtroom. 

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IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 43,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.

Transcript

Hello, and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg. Today we’re speaking with IMS Senior Jury Consulting Advisor Dr. Jill Leibold and Senior Jury Consultant Dr. Nick Polavin about their newest research on safetyism and jury trials.

Jill and Nick will dig deeper into how safetyist beliefs are driving high plaintiff verdicts—especially in medical malpractice, trucking, pharmaceutical, and toxic tort cases. They will also explain how defense counsel can use strategic voir dire questions and trial themes to address safetyism in the courtroom. (If you are listening only and would like to watch the video version, please visit our YouTube channel.)

Adam Bloomberg: 

Welcome back, Nick and Jill. In our previous episodes, we spoke about safetyism related to product liability and personal injury cases and how the plaintiff media machine is playing into these rising trends. Today, let's drill down a bit and talk about the impact of safetyism kind of in other areas, let's go with med mal, trucking, pharma, and toxic tort as well. But before we do that, Nick, can you give us a recap of how safetyism is different from, and clearly bigger than, the reptile theory?

Nick Polavin:

So the reptile strategy really focused on creating fear in jurors based on messages targeting the community. And those, those fear appeals were really in that moment, in the trial, but safetyism, not only focuses on fear, but even more so anger and yet sympathy as well. And it’s based on what really is a sacred value: safety. Our own safety that we have been, you know, focused on since a little child. You know, check both ways on the street before you cross the street. Buckle up when you get in the car. And so, this is something that has been engrained in us throughout our life. And it’s not just about the community, it’s actually focused on the corporation. There’s widespread anti-corporate sentiment right now. And so, it really focuses, or it leverages that and focuses on our need to be safe. 

Adam Bloomberg:

So, in our first episode you were talking about the three fallacies of thinking that characterize safetyism. Can you elaborate on these fallacies and explain how they're related to juror decision making?                                       

Nick Polavin:

Sure. So the three fallacies that are a part of safetyism. The first one is what doesn’t kill you makes you weaker, and the second is emotions are always right, and the third is that life is a battle between good and evil people. And so just to dig into each of those a little bit, so that first one, what doesn’t kill you makes you weaker, that’s really a total risk avoidance that any sort of harm or discomfort, we are now trying to avoid, and we view as a bad thing. Even though going through some discomfort and conflicts can actually help you learn how to handle those conflicts or issues later on in life when they become much more significant. 

And then, the second one, is that emotions are always right, and that’s putting your emotions before your rational thinking. And whenever someone feels that something is wrong, feels harmed, feels threatened, that’s the decision they go with and they don’t really think through how that might not apply in that situation, or, you know, they’re focused on one terrible, very unlikely outcome, rather than the much larger, more likely outcome that ends up being everything ends up being okay. 

And then the third is life is a battle between good and evil people and that is tribalism. You know, the level of polarization in our country, I think this one is clear to people that, if you’re not with me, you’re against me. Even, you know, between the political parties, but also within the political parties, there’s so much tribalism going on where people need to have, you know, everyone with them 100 percent of the time and, if not, then they view them as their adversary.  

Adam Bloomberg: 

Yeah, we’re really seeing that play out right now in politics in congress. So Jill, you’ve been researching this for, gosh, more than a year and a half. Could you start with a little bit of a recap with your findings from the first safetyism study? 

Jill Leibold:  

Yes, absolutely. So Nick and I did a national survey of jury-eligible respondents because we really wanted to understand how beliefs in safety may also correlate to some other well-known plaintiff predictors that we've traditionally used in jury selection process just to get a better understanding of whether this theory really might be playing out in our courts. And so the results of that analysis included respondents who had higher levels of safetyism, had a higher education. They were more urban, rather than rural. They were strong liberal Democrats. They strongly believed in scientific conclusions, which was a finding that was a little alarming to us, since so many defense cases really do rely on science. And so what we're seeing is that they strongly believe in science that they want to believe in, rather than corporate-funded studies for example. And we also saw them taking some safety precautions, such as getting COVID vaccines. So all of those initial findings that we saw really did align with what we are seeing in a pro-plaintiff juror.                                             

Adam Bloomberg: 

So why is it, why was it important to dig deeper in this? 

Jill Leibold: 

Well, looking into the thought fallacies that Nick was laying out for us was really important to us because we wanted to dig deeper into each one of those to understand the attitudes and experiences that built up over time in jurors’ life experiences and how they're using those life experiences and belief systems to make decisions. And those decisions in our litigation world are verdicts and damages. And we had been seeing, in the past few years, an increase in the amount of damages that juries are awarding. And it's, you know, of course, caused some alarm and to really get to the bottom of what's causing that, we wanted to understand those fallacies a little bit better. 

So we wanted to look at risk aversion as part of those thought fallacies that jurors consciously avoid all risk. Right? But it also translates into they want to see that corporations and their products are 100 percent safe 100 percent of the time, things such as that. So how extreme is their risk aversion? We also wanted to look at another aspect of the thought fallacies, which was intuitive thinking. Do people rely more on their gut? Or do they rely on the facts and science that they're hearing about? And our theory was that there would be two different camps of thinking types. And so the theory of safetyism basically says that people who are more intuitive thinkers, those gut-level thinkers, are going to be greater safetyists. So we wanted to look at that, and we also wanted to look at how that all interacts with jurors’ trust for government agencies, because in so many of our our defense cases, we're relying on government agencies to show that we're doing things to keep people safe. So, for example, we rely on FDA approvals, EPA, NHTSA, all of the government agencies that are put in place to keep people safe. And so we wanted to assess how that relates to that risk aversion and to their intuitive thinking and belief in science. 

And so we put together a second research, national research study, but this time we really were interested in understanding how all of those factors relate to whether a juror is going to vote for a plaintiff or a defendant, and whether those verdict decisions also relate to their damages decisions. And so by conducting another study, we decided to throw some science at our theory that this was going to be related and predictive of a plaintiff verdict.                                           

Adam Bloomberg: 

Nick, how has the societal shift towards safetyism over the years influenced jurors’ expectations when it comes to risk and safety in various aspects of life including, say the, we talked about product safety and workplace conditions? 

Nick Polavin: 

So if you think about how people have been raised, you know, the past few decades, you know, baby-proofing homes was not a thing a long time ago, but now that is something that’s more common. You see that in many areas of life with medications that are more effective, products that are safer, products that have better warnings, procedures that are more effective. And so it has, and all those things are great, don’t get me wrong, but it has, it’s important for us to look at how does that affect the mindset of jurors. And so when all these products, procedures, warnings are getting better and better, well that raises the bar for jurors and it ends up that they expect more.  

And so if you think about, let’s say, for trucking, well what’s a jurors own experience on the road? You know, cars in the last 10 years, they have a forward collision avoidance system. And so if they have that in their car, why wouldn’t a truck have that? They have distracted driver alerts in their car which says, “time for a break” or “put your eyes on the road”. If they have that in their own car, why wouldn’t a truck, you know, that weighs so much more, have that? There are also very strong opinions about distracted driving right now. And so they have their own expectations of their experiences out on the road and because of that, they’re expecting much more from trucking companies.  

And similarly for pharmaceuticals, medications have become better, treatments have become better, therapeutics, all of it has become more effective. And now jurors are at a point where they’re expecting that it should work, if there’s a bad result, if there’s some sort of failure in the treatment, it was because of an issue with the medication. They also, in our own research, we saw that over 70 percent of the respondents were expecting that pharmaceutical manufacturers should warn of every single possible side effect, no matter how small. So these are beliefs that are widespread.

And then for medical malpractice, we’ve definitely seen risk aversion play out there as well where now people are expecting that procedures will work, that doctors need to take every single precaution, that they need to do every single test so that they don’t miss something. And there’s definitely hindsight bas playing out there, but also, with risk aversion, if they’re not okay with any risk and there’s a procedure that is 99 percent effective, well if you take a step back and think, “hey that sounds like a great procedure”, that means 1 in every 100 patients is not going to have a good outcome. And jurors end up looking at that one outcome thinking, “well if it didn’t end up good, then something must have gone wrong”. When really, medicine is not perfect. 

Adam Bloomberg: 

Could you elaborate on that hypothetical case scenario you used in the research involving herbicide, the herbicide product, Canophyde? And maybe explain how it was used to measure safetyism and related factors among the participants.                                     

Nick Polavin: 

Sure. As Jill said, we wanted to take safetyism beliefs and see if they related to how jurors found in a product liability lawsuit. So we created a fictional lawsuit using some typical case facts that we see in the mass torts that we work on. And so this was a plaintiff who was suing an herbicide manufacturer for causing her cancer. And the plaintiff was alleging that this product causes cancer, the EU has banned it, that when it’s given to animals, animals get cancer, and that epidemiological studies have shown that people who live around farming communities tend to get cancer. But the defense said “Well, the EU banned the product because if you ingest it, it’s toxic, but there is no study showing that inhalation has any negative effects. And that the distance that she lived from the farms that use this product was too far for any spray drift to be anywhere near her”. And they also pointed out some of the scientific flaws that the animals were given extreme doses that no one would ever be exposed to through inhalation, that many of the animals did not get cancer, there was only one type that did. And that when you controlled for other types of herbicides that have been proven to cause cancer, there was no effect between our fictional product, Canophyde, and cancer in the community. So that was the scenario, and what we found was that 44 percent of the sample ended up finding in favor of the plaintiff and 43 percent found in favor of the defendant. And that left 13 percent as undecided. 

Adam Bloomberg: 

Okay. A lot of data there. Jill, what were the major findings regarding the predictors of verdict outcomes, monetary compensation, maybe anger towards defendants and the desire to punish defendants in these cases?                                             

Jill Leibold:  

Well, we did have a lot of data which allowed us to run predictive regression models on verdict outcome and on desire to award damages and punitive damages. And so we were able to take the results of the scales that we had developed for safetyism, risk aversion, distrust of the government, and intuitive thinking, and run those through our models. And looking first at verdict outcome that had the strongest predictiveness. So higher risk aversion, greater safetyism, greater intuitive thinking, and younger age were the four biggest predictors of a pro-plaintiff verdict. And as you can imagine, the opposite of each one of those factors was a defense predictor. So less risk aversion, lower safetyism beliefs, more fact-based thinking instead of intuitive thinking, and older age. And those were predictive of a defense verdict. And we also looked at damages. How strong their desire to award damages were. And so what we found was about 20 percent of our respondents strongly desired to award damages against Chemegent, and 38 percent had a moderate desire. So we had a pretty good split of damages. And so when we looked at that outcome, they had the greater desire to award damages. They had a higher safetyism, of course, greater reliance on intuitive thinking, greater risk aversion, and younger age. So all of those same factors that predicted a pro-plaintiff verdict also fed into predicting desire to award monetary damages. 

We looked at both desire to award punitive damages as well as anger toward the defending company. Sometimes what we will find in our jury research is that anger can act as a correlate to desire to award punitive damages. And so by looking at both of those, we can get a little deeper understanding of what's feeding that desire. It was interesting, though, because what we found was, in terms of anger, it was, of course, as you would expect, low safetyism, low intuitive thinking led to low anger because they're not letting that anger guide them. However, this one was particularly interesting because if a juror had low safetyism, but were also higher on the intuitive thinking scale, because people can be both, their complex right. If they were higher on intuitive thinking, even if they were low on safetyism, it led to predicting greater anger toward the defendant corporation. So that tells us a lot when we start getting into these punitive damage awards and that when it comes to a verdict, the things we expected were predictive. But when it comes to punitive damages, in particular, that ability to feel anger and let the anger control the thought process was more important than safetyist beliefs.                                              

And finally, the desire to award punitive damages. The only things that were predictive of a strong desire to award punitive damages were greater risk aversion and, which makes sense because it’s that desire to punish, to change the corporation's behavior and younger age. And we also see that frequently on our juries is the younger early twenties jurors do tend to award higher damages and oftentimes do end up being more plaintiff-oriented. And it's really a result of having been raised with the “my feelings are facts” mentality and the safetyist attitudes. So this is a really fascinating study and very fascinating results and has so many implications for how we conduct our jury selections and even some of the stories, the themes that we're giving to jurors.                                             

Adam Bloomberg: 

Nick, your recent article highlights some short-term and I guess you could say mid-range strategies for addressing these challenges posed by safetyism. Why don’t you give us maybe a couple of strategies and their potential effectiveness in the courtroom. 

Nick Polavin: 

So a few things that I’ve been telling clients recently is, well, to go back to our first study, we found that safetyism beliefs were widespread. Among the safetyism beliefs that we tested; it was between 66 to 93 percent of the sample agreed with each statement. And they were very unrealistic safety expectations so what that tells me is that going into voir dire is now fewer defense-friendly jurors and more plaintiff-friendly jurors. So what needs to happen going into voir dire? Well our studies have certainly helped with updating juror profiles for cases like this. Certainly, you know, community attitude survey and mock trial can really help on sharpening that jury profile to find out, who are our good jurors, who are our bad jurors. And once we know that, then figuring out, prioritizing which questions are the most important to ask, certainly some of the safetyism beliefs that we’ve talked about are very important to get at because those are the strongest plaintiff supporters in these cases. But another thing that I’ve really been pushing for is to practice voir dire, to do mock voir dires because it can be really challenging, you know, you can have your whole list of questions in front of you, but when it comes time to illicit information from a group of people you don’t know and to get cause challenges, get more cause challenges than the plaintiff, that’s it’s a skill that takes practice. And that’s why I’ve been pushing clients to practice that beforehand, so they have gone through this and they know exactly how to get that information and how to get more cause challenges.  

And then once they’re in trial, their themes. I mean this will certainly depend on the case and who ends up on the jury, but one of the interesting things that Jill had mentioned was that people who have safetyism beliefs tend to have a stronger belief in science. And, you know, typically the defense has the better science on its side and so encouraging jurors to follow the science, this is about facts, not feelings, and, you know, correlation does not imply causation. Just because the plaintiffs have shown a correlation does not prove causation and they must prove causation. And then also, helping jurors understand that the defendant is here also seeking justice. And justice looks different for the defendant, but they are also there to stand up, you know, they believe they’re being accused of something falsely, and they’re there standing behind their product.  

Adam Bloomberg: 

So Jill, what about some long term strategies? 

Jill Leibold:  

So one of the long term strategies that's really important because jurors are so focused on safety and they're looking to corporations to keep them safe, they want to know and they want to hear from a corporate witness who has knowledge of the company history about safety, what steps have been taken, what changes have been made, and what research has been done to ensure product or people safety. And that witness is somebody who can also tell the good company story because the plaintiffs are coming in and telling a bad company story and someone who can also counter the typical plaintiff themes that we hear, such as profits over safety, someone who can tell jurors about the focus on safety and that it didn't take a back burner to profits.                                    

The other thing that we're seeing is that there’s a lot of serial litigation. And so one defendant may have hundreds of cases that come through. And it's really important when a company is managing that level of litigation, they're using multiple firms in multiple litigation teams. But having the communication between those firms, defense firms and litigation teams of what works, what's working with teams, we're using, even sharing graphics with each other. The communication at this stage is key because the plaintiff's bar are sharing everything and they're sharing their information, they're sharing their themes, and they're sharing what works. And as defense firms, we really need to be doing the same thing and banding together informationally to help our clients. 

Adam Bloomberg: 

Jill, can you tell us what’s next for your safetyism application?                                             

Jill Leibold:  

What we have been, Nick and I, have been working on is developing some targeted voir dire and that really addresses safetyist attitudes, risk aversion, and, in particular, distrust of government agencies to keep people safe. One of the things in our research here that we did find was that a greater distrust in government agencies was highly correlated to risk aversion. And so we're able to translate these findings into voir dire questions and areas that we need to be uncovering in social media searches, as well as voir dire, so that we are identifying our greatest safety jurors in voir dire. And so the development of those questions and how to dig in a little bit more in the courtroom hopefully will provide us with some new strategies for understanding our greatest risks on the panels. 

Adam Bloomberg:

Well thank you both for joining me today. I really look forward to hearing more, more insights from about safetyism, such a such a crucial topic for our clients. And perhaps next time we can bring in one of your defense clients to explore maybe voir dire and jury selection strategies. Thank you very much.

Jill Leibold: 

Thank you.

Nick Polavin:

Thank you, Adam. 

Thank you to Jill and Nick for speaking with us today, and a special thanks to our listeners. Please join us next time and subscribe to the IMS Insights Podcast. 

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 43,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.