By Jill Leibold, Andrew Jackson, Delmar Ehrich and Joseph Price

Law360 (July 28, 2020, 5:36 PM EDT )

Jill Leibold

Andrew Jackson

Delmar Ehrich

Joseph Price

At birth, we begin developing our risk evaluation muscle. New face? Too risky, I should scream at it. Alone in the silent dark? No way, I should scream about that, too.

As we grow, our experiences lead to varying levels of risk tolerance. Some wear 50+ SPF sunblock when they head to the beach — or don't go to the beach at all. Others seem to enjoy the feel of jumping into the shower after a day in the sun and being pricked by 10,000 needles. These two groups evaluate the risk of skin cancer differently.

Risk assessment plays a key role in complex product liability design defect cases that require risk-utility balancing. Evaluating each juror's risk profile is key to selecting a sympathetic jury and presenting a case appropriately tailored to the audience. Trial lawyers and jury consultants engage in this analysis every day.

When the COVID-19 pandemic struck, nearly every person on the planet was forced to engage in new risk evaluations: Am I in a high-risk category? Am I safe to go to the grocery store? Should I wear a mask? Socially distance? What are the chances I die if I get the disease? How do stay-at-home orders impact me and my family financially? Am I comfortable with the risk associated with returning to work?

In short, the pandemic added to, and potentially altered, the risk profile of potential jurors — and should be evaluated as part of jury research in a design defect case.

This three-part article begins with a brief overview of two key components of a design defect case that may be impacted by COVID-19 risk evaluation: risk-utility balancing and the "state-of-the-art" defense. Next, the article provides data and insights gleaned from jury research associated with the pandemic. The article then assesses how the pandemic may impact jury selection, and finally, describes how counsel defending product liability cases can use COVID-19 jury research to prepare a persuasive design defect case.

Background

The Role of Risk-Utility Balancing in a Design Defect Case

In deciding a product liability case under a design defect theory, a jury must wrestle with a key decision about whether a product's design specifications create an unreasonable risk.[1] In this determination, the majority of courts have adopted the risk-utility balancing test.[2]

Under the risk-utility test, a defectively designed product is one whose utility does not outweigh the dangers inherent in its introduction into the stream of commerce.[3] Whether a product is defectively designed involves balancing the likelihood of harm against the burdens of taking precautions against that harm.[4]

The factors a jury might consider in answering this question vary, but generally include the seven factors listed below.[5] To illustrate how juries applying the risk-utility test may see real-world parallels from their COVID-19 experience, we paired the seven risk factors with COVID-19 related issues that all potential jurors are dealing with today.

• The usefulness and desirability of the product: its utility to the user, and to society as a whole. How important is it to go outside? To go to work? To go to church, restaurants, sporting events and hair salons? To send kids to school? What if I wear a mask, even if others don't?

• The safety aspects of the product: the likelihood that it will cause injury, and the probable seriousness of such injury. Will I become infected if I go outside? If I am infected, what are the chances I will end up on a ventilator or die? What are the chances I infect others? Will wearing a mask decrease my risk?

• The availability of a substitute product that will meet the same need and not be as unsafe. Can I work/live/raise children/go to school from home and not be exposed? Can I avoid going outside?

• The manufacturer's ability to eliminate the danger without impairing the usefulness of the product or making it too expensive to maintain its utility. What will happen to the economy if strict stay-at-home measures are implemented, continued or reinstated? Is it worth it? For how long?

• The user's ability to avoid danger by exercising care in using the product. Can we go outside and avoid the risk of infection if we wear a mask and stay six feet apart?

• The user's anticipated awareness of the product's inherent dangers and the avoidability, in light of general public knowledge of an obvious condition of the product, or in light of the existence of suitable instructions or warnings. Am I aware of the dangers of COVID-19? In light of the danger, are the warnings given sufficient? What if the warnings are conflicting between health authorities and governmental authorities or others?

• The feasibility of the manufacturer spreading the loss through the price of the product or by carrying liability insurance. Should the government be paying me to cover the losses inflicted by COVID-19 risk mitigation, including stay-at-home orders? If I am young and healthy, why should I have to underwrite the costs of protecting those who may be aged and/or infirm?

The State-of-the-Art Defense

If the risks of the product were not, at the time a product was sold, readily discoverable using prevailing research and scientific techniques or procedures, a state-of-the-art defense to a design defect claim creates a key issue, because a state-of-the-art design addresses known risks.

By definition, a state-of-the-art design reflects technology at the cutting edge of scientific knowledge. Compare the command and service module, or CSM, from Apollo 11, the first spacecraft to take humans to the moon, to the SpaceX Dragon Capsule, which recently launched into space.

In July 1969, the CSM was a state-of-the-art design, addressing known risks discoverable by prevailing research and scientific techniques and procedures. Today, the CSM would not be considered cutting-edge, like the SpaceX Dragon Capsule. Nevertheless, because the CSM was state-of-the-art at the time it was designed, its design would be defensible — because it was not possible to make the product safer or more advanced given the knowledge or technology available at the time.

A similar analogy can be made to the advancement of safety features in cars. The 1960s Chevy Malibu is not held to the same safety standards for seatbelts and airbags as a new Tesla. In these examples, the state of the art changes as science progresses. New data, trends and risks lead to new and improved products, which become state-of-the-art.

As scientific knowledge expands regarding COVID-19 transmission and treatment, the state of the art changes as well. The N95 respirator is a good example of COVID-19 state-of-the-art technology to prevent the wearer from inhaling aerosols.[6] The tight-fitting mask reduces the wearer's exposure to aerosols and airborne particles. The effectiveness of the N95 respirator is recognized in the scientific and medical community.

In contrast, because of the conflicting research regarding hydroxychloroquine as a coronavirus treatment, hydroxychloroquine may not be accepted as state-of-the-art. Initially, the drug was reported to show promise against COVID-19, but it was not universally approved by the scientific community. Nevertheless, governments and health officials responded quickly and approved its use in patients with severe COVID-19 symptoms.

Later studies claimed that patients treated with hydroxychloroquine were less likely to survive, and were at greater risk of having heart problems. Notwithstanding the June 4 withdrawal of one of the leading studies supporting this view, published in the Lancet,[7] on June 15, the U.S. Food and Drug Administration revoked the emergency use authorization to use hydroxychloroquine to treat COVID-19.[8]

But the debate continues, as a recent study released by the Henry Ford Health System suggests that treatment with hydroxychloroquine cut the death rate significantly in patients hospitalized with COVID-19 and without heart-related side-effects.[9]

The second installment of this article will consider the COVID-19 pandemic's effects on potential jurors' views about risk, as well as their views about corporations and government agencies, and will examine how the pandemic may impact jury composition.

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Jill M. Leibold is a shareholder and director of jury research at Litigation Insights.

Andrew G. Jackson is an associate, Delmar R. Ehrich is a partner and Joseph M. Price is senior counsel at Faegre Drinker Biddle & Reath LLP.

Merrie Jo Pitera, CEO and director of jury research at Litigation Insights, also contributed to this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] "A product is defective in design when the foreseeable risks of harm posed by the product could not have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe." Restatement (Third) Torts: Products Liability § 2(b) (1997).

[2] Prosser and Keeton on the Law of Torts p 699 (West 5th ed. 1984).

[3] Speiser et al., 6 Am. Law of Torts § 18:77 (2020).

[4] Id.

[5] Section 17:32. Risk-Utility Balancing Test, Am. L. Prod. Liab. 3d 17:32 (2020).

[6] Although N95 masks are considered the gold standard, N95 masks with valves have been shown to be effective in preventing the wearer from inhaling aerosols, but not necessarily effective in preventing the wearer from breathing aerosols out of the mask and into the environment. Nancy A. Anoruo, You may want to ditch that valve face mask: The pros and cons, ABC News (May 9, 2020), https://abcnews.go.com/Health/ditch-valve-face-mask-pros-cons/story?id=70511555.

[7] Michael Erman & Kate Kelland, 'Truly sorry': Scientists pull panned Lancet study of Trump-touted drug (June 4, 2020), https://www.reuters.com/article/us-health-coronavirus-hydroxychloroquine-idUSKBN23B31W.

[8] U.S. Food and Drug Administration, FDA Cautions against use of hydroxychloroquine or chloroquine for COVID-19 outside of the hospital setting or a clinical trial due to risk of heart rhythm problems (July 1, 2020 Update), https://www.fda.gov/drugs/drug-safety-and-availability/fda-cautions-against-use-hydroxychloroquine-or-chloroquine-covid-19-outside-hospital-setting-or.

[9] Samie Arshad et al., Treatment with Hydroxychloroquine, Azithromycin, and Combination in Patients Hospitalized with COVID-19, Int. J. of Infect. Diseases (Jul. 1, 2020), https://www.ijidonline.com/article/S1201-9712(20)30534-8/fulltext.

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