What’s Going On? How Jurors Arrive at Damages Awards

Susan G. Fillichio, Esq. and Steve Son, Ph.D.¹

I. Introduction

The trend of jurors awarding unprecedented high damages awards, which began in 2018 and gained momentum in 2019, saw a brief hiatus during the second quarter of 2020. The minor blip in the trend was significantly impacted by the relatively low volume of cases being tried in that narrow window as a result of the pandemic (though certainly, other factors may have contributed to the reluctance of jurors to award damages in that timeframe). Once jury trials resumed, albeit sputtering in volume compared to pre-pandemic times, the damages trends leapfrogged right back to an overall upward climb.² Corporate defendants and defense counsel continue to be concerned, and even shocked, by the verdicts and continually ask us, “Why are the compensatory damages awards so large? Where did that number come from? How could the jury have found that the company acted with malice or reckless disregard under the circumstances? What is going on with jurors these days?” To provide some insight into how jurors make decisions about awarding damages in lawsuits, we review some of the cognitive processes that drive juror decisions about money damages. We likewise share results from the Fillichio & Hastings 2023 annual National Public Opinion Survey©, which reflects juror attitudes commonly important in talc litigation.³ Finally, we explore what influences jurors in determining compensatory and punitive damages awards.

II. The Beautiful Mind: Cognitive Biases
Cognitive biases, well studied by psychologists for decades, are deviations from what people’s perceptions of what they see or hear are completely different.⁴ Every person’s mind has adapted through a lifetime of experience, resulting in cognitive biases that affect the juror’s beliefs and reasoning processes.⁵ Similarly, all of us employ shortcuts (heuristics) to understand the massive information our brains receive so we can function efficiently in the world around us. Some psychologists have classified cognitive biases as errors in judgment, whereas others conclude that they are rational deviations from logical thought and just “good engineering by the mind.”⁶ How a juror’s mind functions and has adapted over the course of a lifetime (long before entering the courtroom) is determinative of how the juror will make decisions in the case. There are numerous biases that impact juror decision-making, and although a few examples of cognitive bias are common parlance and well understood (e.g., the hindsight bias), a few others merit some discussion here, as the Fillichio & Hastings team regularly encounters them with jurors in talc litigation.⁷

A. Hindsight bias

The hindsight bias refers to the tendency to think that events that occurred in the past were inevitable and more foreseeable than they were at the time as a result of knowing the eventual outcome. For example, the hindsight bias is in play with jurors who believe that it was foreseeable to medical science that breathing tobacco into the lungs would cause lung cancer. In asbestos litigation, jurors are consistently led to believe that companies knew, or should have known, by the 1950s (or even in the 1930s) that exposure to asbestos (including minute quantities) causes harm to the body. This purported trail of knowledge then leads jurors to conclude that the companies did not respond appropriately when assessing the potential health risks of their products because jurors are judging behavior that occurred 70+ years ago by modern knowledge and standards (e.g., current OSHA standards), even when those standards have changed or were not in place at the time. Similarly, everything in the modern world has a warning label; consumers are inundated with warnings, for example, when food products may have been processed in a facility with nuts. The current ubiquity of warning labels leads most jurors to conclude that companies in asbestos litigation should have placed warning labels on their products just to be safe, even if there was only a slight possibility of danger. We also often see the bias at work when jurors insist that companies should have kept, over decades (and sometimes over a century), all, or at least most, documents that relate to the manufacture and distribution of every product bearing the company name in anticipation of litigation just like this. There are numerous examples of jurors impacted by hindsight bias in all genres of litigation.

B. Confirmation bias

Confirmation bias is the tendency to filter information by favoring or focusing only on information that supports a pre-existing belief or hypothesis. Gone are the days in talc litigation where jurors have never heard of talc being linked in some way to cancer. Jurors are often fuzzy in their recollection of just where or when they have heard or read about this link, are not certain of the disease(s) that the talc has supposedly caused, and perhaps cannot cite the name of the plaintiff or defendant in the verdict they heard or read about. Still, it is the rare juror in any jurisdiction now who has not encountered at least something about the topic. Even prior to voir dire, jurors hear immediately from the court in the joint statement, or from the parties in a mini-opening, that the lawsuit involves a plaintiff (or multiple plaintiffs) who claims she developed cancer as a result of
exposure to the defendant’s (or multiple defendants’) product(s). Thus, for those jurors who already have a belief or even a gut feeling that there must be something to all of the discussion about talc and cancer, throughout the trial they will look for, process, and remember information that supports that belief. Indeed, just being called to serve in such a case may be all it takes to trigger the confirmation bias. Further, jurors who enter the courtroom with predispositions about talc being harmful will rely upon and focus on information that supports these predispositions, such as case studies of only a couple of individuals who allegedly developed cancer from their use of talcum powder products (while ignoring the large sample epidemiological studies showing that repeated, massive exposure to talc does not cause or contribute to mesothelioma).

C. Availability bias

The availability heuristic is the tendency to overestimate the likelihood of an event occurring based on how readily the event comes to mind, which is often determined by how available it is in the public domain.⁹

It is no coincidence that plaintiff lawyers in talc litigation have flooded the airwaves and social media with advertisements and slanted broadcasts about the purported dangers
of talcum powder products. The lawyers pay for these advertisements and cable network
broadcasts and misleadingly call them “documentaries,” even though there is no attempt to present thorough or balanced information on the topic. As a result, as noted above, it is the rare juror who has not encountered a discussion of the controversy of talc. This barrage of plaintiff-favoring information in the public domain, and a tactic used many times over the years in other contexts, seeks to capitalize on this heuristic that a juror hearing the same information over and over again is more likely to believe it is true.¹⁰ Additionally, when jurors read or hear about large verdicts in these types of cases against companies with household names, they are more likely to stand out in jurors' minds. Thus, the information available in the public domain about these verdicts skews jurors’ perceptions of the dangers of using talc (as well as the amount of damages that are appropriate to award in these cases due to anchoring, which is addressed later in this article).

D. Conservatism bias

Conservatism bias is the tendency to place greater weight on one’s existing belief and give less weight to evidence that contradicts it, resulting in a reluctance to change one’s view in the face of otherwise persuasive information.¹¹ For example, when a juror has a predisposition that talc causes cancer, despite the juror being confronted with epidemiological studies with very large sample sizes showing a low incidence of disease in large numbers of highly exposed populations (e.g. the miners and millers studies), the conservatism bias may well be at play when the juror resists a change in the belief. This bias may also explain why jurors who are aware of the dangers of asbestos because of the need for abatement in schools and homes are slower to accept information pertaining to fiber types or dose-response.

E. G.I. Joe phenomena

This cognitive bias, coined in 2014 from the 1980s animated television series G.I. Joe, has been defined as the tendency to believe that knowing about cognitive bias is enough to overcome it.¹² Ironically, the series closed with a tagline, “Now you know. And knowing is half the battle.”¹³ Fillichio & Hastings and counsel alike often have observed jurors in voir dire who tell us words to the effect of “everyone has bias.” In such scenarios, a juror will admit to having a bias (e.g., against corporations generally), yet insist that she can judge a case fairly because she is aware of that bias. Notably, knowledge of one’s bias does not always eliminate biased behavior: a conscious understanding of a bias does not necessarily overcome a deeply felt emotion that led to the bias in the first place.¹⁴ It is beyond risky to take a juror at her word that she can set aside her bias and judge the evidence fairly for both sides because it is, in fact, a bias that cannot be set aside.¹⁵

III. Juror Attitudes in Talc Cases that Impact Verdicts and Damages

How do these biases manifest in jurors? What do we see during the voir dire process? In addition to conducting numerous jury research studies and supporting counsel in dozens of talc trials, Fillichio & Hastings has conducted annual nationwide surveys over the last three years focused on issues important in all types of litigation, including talc cases. We share below some of the pertinent data from our most recent survey in September 2023, wherein we queried 1,193 jury-eligible respondents across the country.

¹ Susan G. Fillichio, Esq., is a trial consultant and founder of Fillichio & Hastings. Steve Son, Ph.D., is a senior consultant at Fillichio & Hastings. For over 20 years, both have consulted in state and federal venues across the country in all types of civil cases, through hundreds of empirically sound jury research studies and in trials. The authors gratefully acknowledge the contributions of Nicole Mills, M.A., and Jacqueline Kirshenbaum, Ph.D. and for all data and charting meticulously compiled by Layne Hastings and the Visual Communications team at Fillichio & Hastings, Inc. Biographies of Fillichio & Hastings consultants are found at www.fhtrial.com.
² Haselton, M.G., Nettle, D., & Andrews, P.W. (2005). The evolution of cognitive bias. The handbook of evolutionary psychology (pp. 724-746). John Wiley & Sons. See also, Fillichio, S., Son, S. (2023) What’s Going On? How Jurors Arrive at Damages Awards.
³ It is reasonable to wonder whether there is such a thing as a ceiling for some jurors any longer. The reported verdict in McKivison v. Monsanto, et al. (case number 220100337, Court of Common Pleas of Philadelphia County, Pennsylvania) is a recent case in point. After deliberating for just over an hour, the jury awarded $250 million in compensatory damages and $2 billion in punitive damages. The verdict is amongst the largest single plaintiff verdicts on record. As the authors have no firsthand knowledge of the trial, it is unknown whether, and if so how, counsel used anchors during jury selection or through trial.
⁴ Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases: Biases in judgments reveal some heuristics of thinking under uncertainty. Science. 185(4157) 1124-1131.
⁵ Jury instructions for compensatory economic and non-economic damages, pain and suffering, emotional distress, etc., vary widely between the states. Most, however, result in some confusion and consternation amongst jurors in trials and surrogate jurors in mock trials.
⁶ Fillichio & Hastings's National Public Opinion Survey© September 2023 (n = 1,193).
⁷ Marti, M.W., & Wissler R.L. (2000). Be careful what you ask for: The effect of anchors in personal injury damage awards. Journal of Experimental Psychology: Applied, 6(2), 91-103.
⁸ See generally, Kuran, T., & Sunstein, C.R. (1998). Availability cascades and risk regulation. Stanford Law Review, 51(4): 683–768. The availability heuristic is the tendency to overestimate the likelihood of an event occurring based on how readily the event comes to mind, which is often determined by how available it is in the public domain.
⁹ Note that at least some data reflect that damages awards of the past did not adequately compensate plaintiffs for their injuries. See, e.g., Greene, E. & Bornstein, B.H. (2003). Determining damages: The psychology of jury awards. Washington D.C: American Psychological Association. The authors therein suggest that compensation for serious and severe injuries lagged behind what was needed to cover medical costs even back in the 1990s. 10 Foster, S. (2023, July 6). Survey: The average American feels they’d need over $200k a year to be financially comfortable. Bankrate. https://www.bankrate.com/personal-finance/financial-freedom-survey/.