Lawsuit juries harder to find
Fear of ‘jackpot justice’ trumps law for some potential panelists
By ANDREW TILGHMAN, Copyright 2004 Houston Chronicle
When state District Judge Elizabeth Ray summoned a pool of 93 prospective jurors to her Houston court last week, she thought that would be plenty from which to find an impartial group of 12.
But the case was the kind that has drawn increasingly strong reactions in recent years: a multimillion-dollar lawsuit by a terminally ill woman against the drug maker she blames for her disease.
In a scene that has become commonplace in Harris County courts, dozens of people in the jury pool said, in effect, that they simply could not obey Texas law.
“They stood and said, `I hate lawsuits, I hate plaintiffs’ lawyers and I hate plaintiffs, and I don’t think they should even be at the courthouse.’ ” Ray said. “I thought, `Uh-oh. I can’t have that guy because he can’t be fair.’ ”
More than 40 people told the judge they had no patience for claims of pain, suffering and mental anguish in such cases. No matter what specifics might be revealed in the trial, they said, they could not award punitive damages.
In lawyers’ lingo, they “busted the panel,” meaning Ray disqualified so many people that she had to summon a new pool of potential jurors.
That was rare years ago, she said, but not anymore.
Judges and lawyers say the case highlights a trend in the views found among Harris County jury pools — views that can conflict with Texas law, which permits awards for pain and suffering.
A $17 million television advertising campaign surrounding a referendum last year helped to crystallize many residents’ views on so-called tort reform, which pits the rights of the injured against fears of frivolous lawsuits that raise the costs of everyday goods and services.
The message sent out by such groups as Citizens Against Lawsuit Abuse has made such an impact that judges say they have a tough time finding people who will promise to consider a case on its merits.
“We are absolutely not encouraging that. We have never expressed to them anything short of `follow the law,’ ” said Jon Opelt, executive director at the Houston office of Citizens Against Lawsuit Abuse, which is backed by doctors and insurance companies.
Judges have come to expect some prospective jurors to voice strong views on the issue.
State District Judge Mark Davidson, the administrative jurist for the county’s civil courts, said he now requests jury pools about 10 percent or 20 percent larger than he did several years ago.
“We have always had some jurors who had strong opinions,” he said. “But we have had a little bit more problems in recent years finding jurors who have not been influenced by other matters or by the press coverage of other cases.”
Texas voters last year adopted Proposition 12, limiting the amount of money that can be awarded in medical malpractice lawsuits. Since September, injured patients can collect only up to $750,000 for pain and suffering in addition to economic damages of lost wages and medical costs.
The media blitz from both sides of the issue drew unprecedented attention to the struggle pitting doctors and their insurance companies against lawyers and the injured people they represent.
Nearly everyone in the legal system points to the now-famous case of Sheila Liebeck, the McDonald’s drive-through customer who spilled hot coffee on her lap in 1994. She sued the fast-food chain, and a New Mexico jury awarded her $160,000 to cover medical costs and an additional $2.7 million in punitive damages.
“That kind of stuff is crap. Everybody knows coffee is hot,” said Andrew Houston, a 42-year-old truck driver who reported for Harris County jury duty this week and cited the McDonald’s case as the source of his skepticism. “Everybody is always looking for a free ride.”
Liebeck’s $2.7 million verdict was later reduced to $480,000 on appeal.
Personal feelings have intensified to a point where, for some prospective jurors, they overpower a judge’s instruction on how to decide a case, some lawyers said.
“To some people, this is jackpot justice,” said George Fleming, the attorney representing the terminally ill woman in Ray’s court last week. “People have listened to enough of the debate in Harris County to where they are taking views into the courtroom that are not consistent with the way the law is in Texas.”
For years, jurors in most cities in Texas and around the country have grown more reluctant to hit companies with large verdicts, fearing the companies will pass the costs back to them one way or another.
In 2002, Texas juries awarded money for personal injury lawsuits in 56 percent of trials, compared with 66 percent in 1997, according to Jury Verdict Research, a private, Pennsylvania-based company that tracks jury verdicts nationwide.
“Jurors are more sophisticated. They start to think: `How does this affect me? If I give this guy $1 million, that is going to affect my cost of living,’ ” said Dallas lawyer Tom Fee, who handles civil defense.
In recent months, however, defense lawyers have begun to complain that the trend has gone too far. They say people who once were sympathetic to the defense now may hold such strong views that they are disqualified from sitting on a jury.
“What you shall reap, you shall sow,” said one prominent defense lawyer who asked to remain anonymous. ” I see a little bit of irony there. The tort reformers are so anxious to make sure we don’t have frivolous lawsuits that now they are seeing some of their jurors go bye-bye.”
Richard Mithoff, a plaintiff’s attorney who has been suing on behalf of injured people for about 30 years, agreed.
“I think the rhetoric has, in many ways, backfired,” Mithoff said. “It has allowed us to address these things more out in the open and find out what these people’s views are.”
George Shipley, a Houston lawyer who represents large companies, said jurors haven’t become more political, just more vocal. Often, he said, that can help the defense, too.
“The flip side is, it helps us find the people who have reservations and concerns about corporations because of things like Enron and other scandals,” he said. “They are more likely to speak up.”
Jurors speaking up forced Ray to start again this week, this time calling in a pool of 125 people. The lawsuit targeted drug manufacturer Wyeth-Ayerst Laboratories, which makes the controversial drug fen-phen.
Lawyers for the woman, Judy Davis of Houston, and for the drug company reached a confidential settlement Tuesday before a final jury was selected.
Judges and attorneys may be excluding more people from each end of the political spectrum, but most lawyers agree that the juries remain fair and impartial.
“I think that most jurors try their very hardest to base their decisions on the facts and the evidence that they hear and the law the judge instructs them on, and ultimately decide who is telling the truth,” said Maria Boyce, head of the trial division at Houston’s Baker & Botts law firm.
Showing up for jury duty this week, George Robertson, a 65-year-old retired electrician from Pasadena, said he was leery of big lawsuits but would wait until he heard the facts.
“I don’t think people should get a whole bunch, not a million dollars. They shouldn’t take advantage of the situation,” he said. “But it really depends on the case.”