We’re collecting here various thoughts for voir dire questions in drug or device product liability cases that we’ve stumbled across recently. Some of the questions are new and interesting; some are tried and true; all are worth considering before you pick your next jury.
“Has your confidence in the FDA increased, decreased, or stayed about the same in recent years?”
People whose confidence in the FDA has decreased in recent years have probably been paying careful attention to news reports about product recalls, and those people are disturbed by what they’ve heard. We’re told that roughly 10 to 20 percent of respondents will answer “yes” to this question, and those people are dangerous jurors for the defense, so you should strike them.
On the other hand, fewer than 5 percent of respondents — and often 0 percent — will say that their confidence in the FDA has increased in recent years, and the reasons for increased confidence are more ambiguous. Thus, this question provides useful information to the defense without the trade-off of providing useful information to the plaintiffs.
The second questions — the old stand-bys:
“Do you believe that, if there’s an injury, the person who’s hurt should receive compensation?”
“Do you believe that drugs should be 100 percent safe?”
We have no special insights into those questions, but you should always consider asking them in drug cases. Lord knows where they’ll lead.
Third, these are some questions that we recently heard a federal judge suggest for the defense in drug product liability cases:
“Are you currently taking any medications?”
If so: “Do you need those medicines? Do they help you? Do you know how much money the drug company spent to develop that drug? Do you understand that, although the drug is helping you, the drug has possible side effects? Do you understand that every drug has possible side effects?”
Those questions aren’t especially creative, but when a federal judge talks, we listen.
Finally, this isn’t exactly a voir dire question, but we’re sure folks can put it to good use — perhaps in voir dire — so we’re sharing it:
Someone recently told us about an uncle who injured his hip in an accident in the days before medical device companies invented hip implants. Before surgery, the physician asked the routine question those days: “How would you like me to permanently fuse your hip during surgery? Shall I fuse your hip permanently in the sitting position (so you’ll never stand again), or shall I fuse your hip in the standing position (so you’ll sit awkwardly for the rest of your life)?”
We had forgotten about those types of choices, and the fact that people no longer face those dilemmas makes us awfully proud of what we do for a living.
In a drug or device product liability trial, it just can’t hurt to remind the jurors, early and often, of how dramatically modern medicine has improved our lives.