Many of the goals and methods of jury selection are well known and common to a variety of cases, and many of the jury selection criteria relevant to pharma and biotech cases are by no means unique to the field. In any case brought against a defendant manufacturer, common sense dictates that the defendant will try to uncover relationships between potential jurors and the parties, strong opinions about the parties and any product at issue, and any biases against corporations generally or against the defendant’s particular industry. Similarly, in most cases the experiences of potential jurors with the legal system will be explored, along with their general opinions on litigation. In any case involving a widely used product, pre-trial publicity is also a potential concern – including any previous litigations or settlements related to the product or to the company conduct at issue. None of these lines of inquiry is unique to pharma cases.
Notably, however, beyond these generally useful categories and approaches, there are also some selection criteria and voir dire topics likely to be of special importance in pharma cases. These criteria correspond to key issues and trial themes common to several types of cases brought against pharma companies, including product liability cases brought by individual plaintiffs, Medicaid fraud and consumer fraud cases brought by state attorneys general, and false claims act litigation (and analogous state cases) brought by qui tam plaintiffs.
Some Key Characteristics and Attitudes of Jurors in Pharma Cases
Some of the characteristics that can logically be expected to make jurors more (or less) receptive to common defense themes in pharma cases are discussed below — along with lines of inquiry that may help to identify jurors with those characteristics in voir dire.
The Medical Profession
In several types of cases brought against pharmaceutical manufacturers, defendants are likely to prefer jurors with a favorable view of doctors and, more generally, the medical profession. In product liability and warning cases, in particular where the learned intermediary doctrine is in play, jurors with a high regard for (and high expectations of) doctors are likely to be most receptive to arguments that doctors could and should have understood the risks and benefits associated with a pharmaceutical product. The more jurors think that patients should be able to rely on the medical judgment of their physicians, the less likely they are to hold drug manufacturers liable for assertedly inadequate warnings or excessive risks. Similarly, in cases based on alleged fraud or failures to disclose, jurors who believe that doctors are knowledgeable, sophisticated, and diligent are less likely to believe that they were, or at least should have been, misled, and such jurors are more likely to hold doctors accountable for prescribing decisions.
Similarly, where plaintiffs introduce evidence of regulatory action such as FDA warning letters, or where they blend allegations of fraud with charges of off-label promotion, jurors who admire and trust doctors are more likely to value medical judgment over regulatory pronouncements in determining whether a drug is safe and whether a company’s communications about it are false or misleading. Jurors with a high regard for physicians are also less likely to credit allegations, offered in support of a variety of claims, that research findings and prescribing decisions are improperly influenced by pharma companies.
The lines of voir dire questioning used to identify jurors with favorable or unfavorable views of the medical profession include inquiries into any experience with illness and treatment, attitudes to doctors and medical practice, and the sources that jurors rely on for medical information. It should be noted that, as with many professions, the people with the highest regard for doctors may not necessarily be doctors themselves or those who work with them most closely or know them best. Although many jurors from healthcare professions may have a high regard for medical judgment, and may generally bring an educated and skeptical perspective to patients’ claims in product liability cases, some may not; and where possible the views of each juror should be ascertained and assessed individually. In addition, potential jurors who actually work in the medical profession or in related fields (such as pharmacists or hospital administrators) may have developed critical or antagonistic sentiments toward pharma companies.
An additional complicating factor appears in cases where manufacturers are accused of suppressing evidence of the risks associated with a medication: jurors with a very high regard for medical judgment may not be naturally receptive to a defense argument that preliminary indications of risk must be confirmed before being made public, and they may be inclined to believe that even inconclusive evidence of risk should be disclosed.
Unfavorable portrayals of the pharma industry are widespread, and both private plaintiffs and the government have done their best to reinforce them in and around litigation. Plainly defendants must use voir dire to identify (and establish grounds to challenge) any potential jurors whose views are so extreme, pervasive, or inflexible that they cannot be fair. Where possible, defendants should ask or propose open ended questions that will give any such jurors the opportunity to talk freely and articulate their views. For those prospective jurors who display an anti-industry bias, closed ended questions can help confirm and document such bias and establish grounds for cause-based challenges.
In addition to general attitudes to the industry, defendants may also examine jurors’ sensitivity to negative portrayals of the role that industry plays in research, publications, and education; the relationship between industry and prescribers; and the relationships between industry and payors. Often (notably where claims are based on kickback theories) these relationships are at the center of the litigation, and plaintiffs suggest that virtually any benefit flowing from industry to a provider or payor is per se corrupt. Defendants will want to use voir dire both to identify jurors susceptible to such an argument and to familiarize jurors with background information that may help them to understand and accept the relationships in which companies engage.
In a related area, defendants can also be expected to prefer jurors who understand, or can be educated about, the operation of large, complex organizations – especially in highly regulated fields. Plaintiffs often use isolated internal company documents as evidence that the company knew of safety risks it failed to disclose, or that it actually engaged in conduct that it may merely have discussed; and defense efforts to put such evidence in context are should be more persuasive with jurors who are familiar with the kind of internal deliberations that take place in large enterprises. Plaintiffs also frequently portray any breach of internal compliance standards as conclusive evidence that a company violated the law. Once again, an effort to put such asserted violations in context will be better received by jurors who recognize that such internal rules are necessarily more stringent than the legal standards to which they correspond.
In cases where the adversary is a government entity, defendants will of course wish to impanel jurors who are skeptical about the government and its claims. Further, even in cases where the government is not a party, if plaintiffs base their claims in part on regulatory actions or allegations of off-label promotion, defendants may prefer jurors who do not give such regulatory evidence undue weight.
On the other hand, in some cases defendants themselves may wish to use government action – such as FDA approval or the inclusion of a drug on a formulary, as evidence that a drug is safe and effective and that government claims to the contrary are disingenuous. In such cases, although defendants may choose jurors who believe government should play a limited role in medical practice, they may not necessarily look to select jurors who believe that government action, when taken, is unsound.
Qui Tam Plaintiffs
The involvement of qui tam plaintiffs provides a special area for jury selection in pharma cases. Where the government joins a qui tam case, it portrays the relator as a courageous whistleblower; for their part, defendants might depict him or her as a disloyal opportunist looking to profit from trumped up claims, or simply as a misguided crusader. In jury selection for such cases it is important to explore and consider juror attitudes to the qui tam relator in particular, and more generally their feelings about whistleblowers, self-interested informants, and the people who seek to advance causes through litigation.
In cases where plaintiffs try to oversimplify scientific issues or draw inferences from inadequate evidence, jurors with scientific or technical backgrounds are better equipped to see the weaknesses in plaintiffs’ presentations. Such jurors can be assumed to be less likely than others to find proof of an undisclosed risk – or company knowledge of a proven risk – based on incomplete evidence; and they are more likely to be sensitive to the complexities of causation, including the difficulty of finding causation where harm may be attributable to multiple factors. Similarly, where plaintiffs contend that qualified disclosures of research data, hypotheses, or preliminary findings amount to fraudulent promotional claims, jurors who are accustomed to distinguishing between hypotheses and definitive conclusions may be less inclined than others to find that manufacturers made unsubstantiated claims.
In voir dire, potential jurors with a scientific background or a respect for scientific analysis can be identified with basic biographical data and with more general questions regarding the value and role of science. General lines of questioning may also uncover jurors with suspicious or unfavorable views of science, who may be more inclined to jump to conclusions.
Temperament and Methods
In addition to jurors with scientific backgrounds, defendants may more generally seek jurors who are thoughtful, careful, and inclined to reserve judgment, especially on complex issues outside their usual areas of expertise. Defendants can also be expected to prefer jurors who understand the dangers or hindsight and who do not feel a strong need to assign blame for events that are difficult to explain. Such skeptical jurors are less likely to find legal liability based on a bias against the defendant or on conduct or statements irrelevant to the claims – or on the basis of coincidence portrayed as causation.
Defendants will generally try to keep trial presentations as simple as possible and appeal to common sense. It is a truism of litigation that when you are explaining you are losing. But in many cases defendants must inevitably present at least some explanations for superficially simple facts (for example, arguing alternative causal factors or educating jurors on the background of industry relationships); and it is important to find jurors for whom the truism is less true than it might be generally.
Beyond the obvious importance of thoughtful, smart jurors in understanding complicated issues, such jurors are often more likely to be sympathetic to company witnesses, both those through whom the company will present its case at trial and those who may be presented by deposition. As a matter of common sense, jurors are more likely to credit testimony from witnesses with whom they identify. Company witnesses are frequently educated business people and scientists, who speak deliberately in compound sentences; and their tendency to come across as either careful (good) or calculating (bad), depending on juror perception, is only heightened when they appear in selections of video excerpted from slow paced, day-long depositions. It is important to choose jurors who will be prepared to find them credible1.
The decision making approaches that jurors bring to a case can be discerned not only from the content of their responses to questioning, but also from the way in which they respond to questions. Those who give nuanced and qualified answers (either orally or in questionnaires), who say “it depends” and find complexity in facially simple questions, are more likely than others to bring a deliberate approach to their decision making.
In pharma cases as in any case, logic dictates that the juror experiences and opinions most likely to influence outcomes are those with the closest connection to key trial themes. The juror characteristics and voir dire topics outlined above correspond to many of the recurring key trial themes and evidence in pharma cases; and in many of the types of cases brought against pharma companies, the topics connected to these common trial themes will be worthwhile areas to explore in voir dire. That said, ultimately jury selection is a case specific and juror specific task, and in addition to these jury selection criteria common to pharma cases generally, defendants must also of course develop criteria adapted to the strengths and weaknesses of each particular case. To do so counsel may wish to consider testing trial presentations with focus groups or mock juries. When attorneys have been immersed in a case for months and years, it is sometimes difficult for them to fully appreciate how key evidence will appear when presented in the linear format of a trial, where jurors make judgments based on fresh impressions of documents and witnesses, and where they are more susceptible to the shock value of unfavorable documents or testimony presented out of context. For this reason it is important where possible to test the presentation of key evidence and trial themes, not only to develop trial strategy but also to develop an understanding of which jurors will be most swayed by key pieces of evidence.