Opinion: Not Judge’s Job to Protect Us from the Jury System

Civil trial by jury: Essential to liberty, protection against tyranny and corruption.

Civil trial by jury: Essential to liberty; protection against tyranny and corruption.

Popular culture has widely accepted the caricature of juries as ignorant and unreliable. Such thinking is certainly not new. More than 140 years ago, Mark Twain quipped:

“We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding 12 men every day who don’t know anything and can’t read.”

Twain was a funny man. Nevertheless, the jury system is an integral part of our democratic process. As James Madison put it: “Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

The jury system may have its flaws, but no other system has been devised that is better at protecting the rights of average citizens against the oppression of the powerful. Chief Justice William Rehnquist, a Reagan appointee and a conservative, said:

“The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign.”

However, many judges today have become jaded about the system of which they are a part. Too many judges are overly influenced by the perception that juries are ignorant and unreliable, to the extent that such judges have appointed themselves to the mission of undoing the “damage” of jury verdicts and awards whenever the chance presents.

However, the real damage being done is to our justice system, and it is being done by those judges themselves.

When a judge resorts to the extreme measure of overruling a jury, the judge should do so with the sober knowledge that he or she may be subtly undermining “the civil jury trial, [which is] preferable to any other and ought to be held sacred” (Virginia Declaration of Rights, 1776).

This is something of which every plaintiffs’ lawyer is acutely aware. My job is to represent ordinary citizens who have experienced a serious harm or loss due to the reckless wrongdoing of another. Especially in product liability cases, the defendant is often a large corporation that knew about the possible adverse effects of its prescription drug or automotive technology or household product. Such companies forecast the cost of defending themselves against such claims, figure that cost into their profit margin, and go right ahead with production, knowing that deaths, injuries and other kinds of losses will occur on their way to the bank.

Two Recent Jury Awards Overruled

These are thoughts I have returned to recently as I have watched the outcome of the first of more than 3,000 lawsuits pending against Takeda Pharmaceutical alleging bladder cancer and other serious health effects from its drug, Actos, which is prescribed to treat type 2 diabetes. Evidence indicates that Takeda knew about Actos’s association with bladder cancer and other serious effects many years before that association became public knowledge.

Two of those thousands of Actos cases have now gone to trial, and each has had a remarkably similar outcome. In each case, a jury found Takeda Pharmaceutical guilty of wrongdoing. In each case, a jury made a large award to the plaintiffs. And in each case, the judge immediately overruled the jury and zeroed out the award.

In California Superior Court (Cooper v. Takeda) in April, the jury ordered Takeda to pay Jack Cooper $6.5 million. Cooper took Actos for five years and subsequently was diagnosed with bladder cancer, which has spread throughout his body. Judge Kenneth Freeman overturned the award, ruling that the testimony of the plaintiff’s expert witness was inconclusive.

In Baltimore (An v. Takeda) in September, a jury awarded $1.7 million to the family of Diep An, who used Actos and later died of bladder cancer. Judge Brooke Murdock overturned the award because the deceased had smoked for several years, even though he had stopped 15 years before he was diagnosed with cancer.

Are these reasons compelling enough to justify the extreme measure of overruling a jury?

In the California case, was the jury truly unable to rationally evaluate the expert witness’s testimony? Was the judge moved by an urge to defend us — no, to defend Takeda Pharmaceutical — from another “ignorant jury”?

In the Baltimore case, was the jury truly unable to balance the possible effects of smoking with the possible effects of the prescription drug? All that Judge Murdock knew about Mr. An’s smoking is the same thing that the jury knew — the information that Takeda presented at trial. The judge’s decision to overturn the jury award amounts to nothing less than a declaration that she can interpret the evidence better than the jury can.

A well-known study by two Cornell University law professors found that the popular conception of juries as ignorant and capricious is incorrect. Their study found that juries are no more likely to issue large awards and no more frequent in doing so than judges are. The conclusion was based on an analysis of 9,000 actual trials.

There’s Always the Appeals Process

What about checks and balances? What about when a jury really gets it wrong? That’s what the appeals process is for. As a matter of fact, the same Cornell professors did a follow-up study in which they found in the case of unusually large civil awards, the rulings are often overturned on appeal. They found that defendants succeed in getting a reversal on appeal 31% of the time.

This is where it really gets interesting. The Cornell study went so far as to conclude that the defendants seem to have an unfair advantage at the appellate level. The authors of the study concluded that appeal court judges are too far removed from what is happening at the trial level and are biased by “sizeable misperceptions about the jury.” They wrote:

“Misperceptions of the liability crisis pervade the populace and the [justice] profession … They imagine a biased and incompetent trial system handing vast sums over to undeserving plaintiffs.”

Who Do You Trust: Judge or Jury?

Do the American people want our judges to protect us against the decisions of our juries? No. As a matter of fact, a 2012 poll found that the average citizen trusts a jury far more than a judge. The Rasmussen poll found that 65% of American adults trust a jury more than a judge, while only 21% trust a judge more than a jury.

That’s how you already feel, if you are an average citizen. Think about how you will feel if you must ever turn to the civil justice system to make a claim against a powerful entity that has knowingly caused you harm.

Thanks to our American system of justice, you will have the opportunity to present your claim and your evidence to a jury of your peers. Then, if you prevail, you must wait to see if the judge does you the great favor of letting the award stand — or tosses it out because he or she knows better.

The judges are protecting us from the juries. But who will protect us from the judges?

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To learn more about Actos and to learn more about your legal rights, if you or a loved one have used Actos and have been diagnosed with bladder cancer, see our page on Actos Linked to Bladder Cancer.