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  •   Activist Jurors Help Carve Out New Law

    Tobacco juror
    "We thought it was important to send a message," says Tony Vaccaro, a juror in a San Francisco tobacco case.
    (By Steve Castillo for The Washington Post)
    By Joan Biskupic
    Washington Post Staff Writer
    Monday, August 30, 1999; Page A1

    Tony Vaccaro thought it was time for "the little people" to send a message -- the "average citizens," as he put it, "who usually don't have a voice."

    The message was this: Tobacco companies have spent decades deceiving the public about the effects of their cigarettes, and they should be made to pay for it.

    But the message wasn't just from Vaccaro, a 28-year-old financial services worker in San Francisco. It was the verdict of a 12-person jury on which he served in February. Its $51 million judgment against Philip Morris -- one of four verdicts against tobacco since last summer -- was part of a populist trend of jurors around the country exacting punishment on disfavored industries.

    Tobacco hasn't been the only business newly buffeted by this wave of juror outrage. In February, for the first time, a jury decided to hold gun manufacturers responsible for the criminal use of their products. Again, some jurors said the industry had it coming.

    Lawsuits condemning cigarettes and guns are nothing new. Advocacy groups have campaigned for years against the tobacco and firearms industries, using the courts as a weapon. What is new is that juries are listening.

    These verdicts coincide with a national trend of juries assessing harsher and harsher damages against corporate defendants, such as the $4.9 billion verdict returned last month against General Motors Corp. for six people whose car exploded -- and reduced on appeal last week to about $1 billion. But they add a new element.

    Jurors in these cases were staking out new territory in American law, asserting their interest in issues broader than the behavior of a single corporate defendant. Unlike past product liability verdicts, such as those against the Ford Pinto or the Dalkon shield, where a single company was targeted, juries are focusing on broad social problems -- smoking-related disease, gun violence -- that traditionally have been addressed through legislation.

    "Jurors are ready to believe that they are the public avengers. Because the governor won't do it, the state legislature won't do it, the jurors are the only ones who will do it," said Victor Schwartz, a liability law expert who opposes the trend.

    The recent verdicts are part of a pattern of juror activism across the country that also includes so-called juror nullification, in which juries have let criminal defendants go free, despite the weight of the evidence against them, in protest of particular laws. In the current product liability disputes, jurors say their verdicts are based on the evidence in the case. But, as with nullification, they also appear to be giving freer rein to their own sense of justice.

    "There is a lot of anger out there," said Stanford University law professor Robert Rabin, "and it's getting translated into jury verdicts."

    This increased willingness to find against the tobacco and gun industries has released a torrent of new litigation and could have wide repercussions for other businesses and people who claim they have been hurt by their products. Smokers and their families have filed hundreds of individual lawsuits across the country; numerous class action efforts are also pending. And since the groundbreaking Brooklyn gun verdict in February, the firearms industry has faced an onslaught of lawsuits. A total of 27 cities and the NAACP are now suing firearms companies.

    "All these cases have a snowball effect," Rabin added, "as potential jurors read . . . about an industry that appears to have been involved in some coverup and then gets nailed. They feel empowered to act likewise."

    Some lawyers argue that these verdicts poach on the government's role in regulating tobacco and guns, determining, for example, what constitutes deceptive cigarette advertising or the negligent marketing of firearms.

    This trend of jury verdicts -- in essence, steering national policy on tobacco and guns -- raises important questions. Can a single corporate defendant in a court case receive a fair trial if the jury seeks to punish an entire industry? Can a scattered set of verdicts add up to a coherent national policy? And if this tendency continues, what other unpopular industries might feel themselves targeted by jurors: Health maintenance organizations? The entertainment industry? The media?

    Expanding Public Scorn

    It may have been inevitable that public scorn for cigarette and gun manufacturers ultimately would find its way into the jury box. A new Washington Post survey found that 59 percent of Americans think the tobacco industry has not behaved responsibly in selling its products and about half feel that way about gun manufacturers. But at the same time, the public has watched state legislatures and Congress struggle with how to regulate these controversial but legal industries.

    Last year a proposed settlement that would have further regulated the sale of cigarettes collapsed in Congress after the tobacco companies withdrew their support and lobbied hard against it. (A subsequent settlement between the states and companies involved smaller sums and little regulation.)

    And despite a series of high-profile shootings that have strengthened public support for gun control, Congress remains at an impasse. Competing Senate and House versions of a juvenile justice bill -- one with modest gun control measures, one with none -- are expected to be debated in conference when Congress returns from its recess.

    The legislative vacuum on tobacco and guns is increasingly being filled by litigation brought by individuals, organizations, states and the federal government. And that litigation is increasingly finding sympathetic juries.

    "In the jury room generally, it is now seen as very acceptable to take a stand against an industry," said David S. Davis, senior vice president of the national jury research firm DecisionQuest. "It used to be that jurors who spoke about individual responsibility would get the applause."

    The Post poll shows that a majority of those questioned -- 55 percent -- are suspicious of jurors' taking on a more important role in punishing companies for their legal but dangerous products.

    But a substantial minority -- 35 percent -- believe it's a good thing if juries take the lead against harmful products when legislatures have failed to act. Experts found this percentage significant, given that juries traditionally have confined themselves to deciding the facts of a single case. They also noted the potential importance of this minority, because one or two forceful opinions on a jury can affect the outcome of a case.

    "The growing body of evidence suggests some jurors are turning mass tort litigation into a vehicle for the moral condemnation of corporate behavior thought to be irresponsible or malevolent," said University of Georgia law professor Richard Nagareda.

    Jurors' New Confidence

    To be sure, some of the recent cigarette and gun liability lawsuits have ended in the industries' favor, including a verdict against the family of a longtime smoker in Baton Rouge, La., last month. But even in cases where the industry ultimately wins, juries are conscious of appearing pro-tobacco. "People said we weren't sending the right message," said Rodney Marchand, foreman of a Memphis jury that returned verdicts for three cigarette companies in May. "They said we are 'letting the tobacco companies off.' "

    This attitude on the part of jurors is a recent development. In four decades of litigation by smokers and their survivors against cigarette companies, there were only two verdicts ordering companies to pay damages to smokers before last summer. The earliest victory for a smoker came in 1988, when a divided jury said Liggett Group was responsible for the death of Rose Cipollone, a New Jersey woman who smoked Chesterfields and died of lung cancer in 1984.

    But the second thoughts of the Cipollone jurors were revealing. Many of them told reporters at the time that they were worried that they had done the wrong thing. Some cried about having given in to more dominant jurors. Not until 1996 did a jury again decide in favor of a smoker, and this verdict, like the Cipollone case, was overturned.

    Today, after years of allegations of the industry manipulating nicotine levels and concealing the health risks associated with smoking, jurors express no such tentativeness. In recent interviews, juror after juror spoke confidently about the desire to punish the industry, citing its alleged history of misbehaviors and its perceived ability to use large profits to beat the system.

    "It was the whole lay of the land," said April Dewees, a 30-year-old schoolteacher on the Portland, Ore., jury that awarded a record $80 million to the family of a man who used to smoke three packs of Marlboros a day. "All the ways they played down the dangers of it. Someone said to me afterward, 'Well, all businesses lie.' Well, they shouldn't lie. There are repercussions. They profited from their misrepresentations. They did need to be punished."

    John Bowman, a 53-year-old businessman who was on a 1998 Jacksonville, Fla., jury that ordered Brown & Williamson to pay $1 million for the death of a Lucky Strike smoker, including the first punitive damages ever in such a case, said that verdict was an indictment of the whole industry: "We felt that all tobacco products are dangerous." Fellow juror Nicole Boyer, 36, a homemaker, said she believed "all the companies were in on it together, trying to get people hooked on nicotine."

    Tony Vaccaro, of the San Francisco jury, added, "We thought it was important to send a message because of the stonewalling they had done for all those decades."

    Gary Doski, a 49-year-old electronics technician and the foreman on the 1998 Jacksonville jury, summed up the contrast between his jury and the 1988 Cipollone panel: "Afterward, the lawyers were all surprised at how happy all of us seemed."

    Discord on Gun Verdict

    In contrast, the watershed verdict in February against gun makers was marked by the kind of discord and angst that the Cipollone jurors felt a decade ago. At one point, the Brooklyn jurors sent the judge a note asking for help: "We are all very upset. We are starting to fight. We cannot reach a decision. . . . Please, please, give us more direction!"

    One juror expressed some reservations, saying a verdict against the gun manufacturers would "open the floodgate of lawsuits across the country." Other jurors wept. At one point, a note pleaded, "One of the jurors doesn't feel well. Is there any way we can get some Pepto Bismol?"

    The Brooklyn jury's discomfort reflected a broader public ambivalence. The Post poll found that 70 percent of those questioned said they disapproved of holding gun manufacturers responsible for shooting deaths and other illegal uses of their weapons. But the respondents were evenly divided -- 46 percent to 45 percent -- on the question of whether gun manufacturers have behaved irresponsibly or responsibly in advertising and selling their products.

    Even this ambivalence represents a change in the social and legal context of firearms violence. Shooting victims have been suing gun manufacturers for putting the weapons on the streets for years. But no such lawsuit had ever reached trial until last year when a jury decided, also in a Brooklyn case, in favor of a gun company after about six hours of deliberation.

    This year's Brooklyn jury deliberated for six days before ultimately deciding to hold 15 manufacturers responsible for the negligent marketing of handguns in three of the seven shootings covered by the lawsuits. But they awarded damages in only one of the cases, to 19-year-old Steven Fox of Queens, who survived a bullet to the brain.

    "The Rubicon has been crossed," said Elisa Barnes, a lawyer for the victims.

    A Corrective or Bad Policy?

    Some legal experts argue that juries' increased willingness to take on controversial industries is a necessary, democratic corrective to unchecked corporate power.

    "What is happening now is that jurors are more angry and aware," said John Banzhaf, a George Washington University law professor active in anti-tobacco litigation. "For years, tobacco companies could say addiction and deaths weren't their responsibility. But the social climate has changed. And this is why we have juries."

    "Jurors feel empowered within the system and against an industry that has flagrantly not done the right thing," added Stephanie Hartley, a Florida lawyer who represents smokers.

    But defense lawyers argue that juries are unsuited to the broader role they are beginning to embrace. They say jurors who are eager to use their position to send a message to an industry may find it hard to render a fair verdict on whether a specific defendant caused a single victim's cancer or other injury.

    Critics also point out the uneven policy likely to result from a patchwork of verdicts that inevitably depend on the predilections of the jurors and the quality of the case mounted by each side's attorneys. Unlike legislators, who typically hold hearings on a subject and seek out information from a multitude of competing interests, jurors are told only what the two sides of a case want them to know.

    "Juries aren't equipped to decide social policy," said Anne Kimball, a Chicago lawyer who represented gun makers in the recent Brooklyn case. "To the extent that we give a jury the power to effectively legislate . . . we are doing damage to the underlying principles of our government."

    Meanwhile, industry analysts worry that the negative revelations from the recent cases will only produce more lawsuits, and say unpopular industries must change the way they handle litigation. Corporate defense lawyers say they are now warier about letting cases get to trial, more careful in choosing jurors and, if a trial is inevitable, intent on communicating their own message about the limits of a company's responsibility.

    And those on both sides of the debate wonder what industries might be next. Some believe they already have seen signs of incipient jury backlash against media excesses in a verdict against the "Jenny Jones Show" in May.

    The talk show was on trial over a killing that arose from a 1995 episode called "Secret Same-Sex Crushes." On the program, Scott Amedure told his friend Jonathan Schmitz that he had a crush on him; three days later, Schmitz gunned down Amedure. The victim's family lodged a wrongful death suit against the show for "ambushing" Schmitz with news of the crush. The jury deliberated about six hours before finding against the "Jenny Jones Show" and awarding the Amedure family $25 million in damages.

    Geoffrey Fieger, the lawyer for the victim's family, said the jury was sending a message to the talk show industry: "That type of human exploitation needs to be corralled."

    "In the future, defendants that make products that create perceived social costs could all be at risk," said lawyer Schwartz, suggesting as possibilities chemical manufacturers, pharmaceutical companies and liquor producers. "I have never bought the idea that tobacco is unique. I say: No way. This is the beginning."

    Claudia Deane, assistant director of polling, and Madonna Lebling, staff researcher, contributed to this report.

    © 1999 The Washington Post Company

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