Fresh from a mistrial due to COVID causing the jury panel to be deficient in number, I was thinking of some non-scientific observations about jurors, jury selection, and jury pools during our ongoing COVID era. Some juror’s attitudes have changed our jury venire and the possible areas of inquiry to “deselect” jurors in a very scientific area of litigation: medical malpractice lawsuits. Here are some observations and areas of inquiry for jury selection:
SCIENTIFIC EVIDENCE AND EXPERTS
COVID and our politicization of the virus has led to more jurors who distrust science and experts with a “you cannot believe them” attitude by some. The politization of a world-wide pandemic has consequences for medical malpractice litigation and jury selection. The debate about the origins of COVID, treatment for COVID, vaccinations, Dr. Fauci, and mask mandates played out on national TV during the shutdown has crept into the everyday psyche of jurors. This may affect some jurors who will apply the same debate principles and thought processes to the medical malpractice case with dueling experts.
COVID presented 24/7 discussion of scientific discussions and physician arguments about proper treatment of a serious viral illness. More jurors expect dueling experts who do not agree — akin to the COVID debates that were carried on by some so-called medical professionals in the media. The fallout from that experience has created a new cynicism and distrust of expert witness testimony by some, but not all, jurors. Some jurors may actually have developed a better perspective of what competent scientific evidence looks like.
However, a COVID denier juror may question anything stated by an expert, and the real question is whether they accept any science as true – or will even listen – ever again. One potential juror said he took Ivermectin (i.e., horse debugger that President Trump advocated as a COVID cure for a brief period) to prevent COVID rather than vaccinations, which led to a discussion about jurors weighing the scientific evidence and deciding a viral infection malpractice case based on evidence-based medicine. What followed was an unsatisfactory discussion whether the potential juror could commit to deciding the case based upon the expert testimony presented by both sides.
SCREW THE EXPERTS! —YOU DO NOT HAVE TO LISTEN TO THE DOCTORS OR EXPERTS.
Some potential jurors do not believe in COVID, vaccinations, or mask mandates, and they are used to engaging in the mental gymnastics necessary to reject scientific evidence. Such potential jurors do not choose which expert to believe or who is more persuasive or logical — they do not have to make that tough decision. They can reject all of them and create their own reality based on their belief system. “Who is right and who is wrong depends on what I WANT to believe!”
PATIENT ADVOCATE—YOU CANNOT TRUST THE MEDICAL ESTABLISHMENT
Right now, in a different way, this era compares to 1960’s, with its questioning of the trustworthiness, reliability and honesty of our institutions, including health care providers. One of the largest scions of the establishment today is corporate health systems and hospital systems —”they overbill you and underserve you, they are not honest or trustworthy, and you have to watch them like a hawk.” Everyone is required to make their own medical decisions and to be a “patient advocate” because we cannot trust the doctors and nurses to do their jobs anymore.
SYSTEM ERROR—DISTRUST OF CORPORATE AMERICA
For some, the lack of trust in our normal political institutions leads to distrust and verdicts against corporate health care systems. The continued trend of distrust is borne out by the plaintiff’s bar choosing many times to only name corporate entities as defendants in medical malpractices cases, then throwing out the words “system error” as often as possible — even if it is inapplicable to the facts. Blaming the amorphous “system,” rather than the nice physician sitting before the jury who was only trying to do their best for the patient, is much more palatable to some.
WHERE IS THE AUDIT TRAIL? THERE IS A CONSPIRACY OR COVERUP EVERYWHERE
Conspiracy is something that all of America seems to be preoccupied with these days. The Chinese-created COVID conspiracy was only the beginning. Plaintiff’s attorneys try to exploit this by using themes such as: : “There is something suspicious about the electronic medical record, and the defense has not explained it;” “The defense witnesses are protecting each other and not telling us the truth;” or, “The defendants are engaged in a conspiracy or cover up.” These are not new themes for the plaintiff bar, but with some highly politicized jurors, they may have a greater opportunity to gain traction in the present environment. Asking these potential jurors questions about these themes can be very revealing in voir dire:
- Do you believe COVID exists?
- Do you believe COVID was created by the Chinese?
- Do you believe COVID can kill people or seriously harm them?
- Do you believe that the Ivermectin or drinking bleach (or any other claimed cures for COVID) cures COVID? Why? Where did you get that information?
- Are you vaccinated? Why or why not?
- Did you support or oppose the mask mandate, or are you opposed to the current mask mandate? Have you ever refused to wear a mask when required?
- What internet sites do you get your news from?
- Do you watch Fox for news?
- Do you watch CNN for news?
- Where do you get your news?
- Do you believe the 2020 election was stolen or fraud was committed?
- Do you believe V.P. Pence is a hero or a villain?
- Do you believe that you can legally overturn an election after it is completed?
- Do you believe in the rule of law? What does that mean to you?
- Do you believe the ends justify the means?
However you choose to approach these issues, the importance of looking for anti-science or conspiracy oriented jurors shouldn’t be underestimated. These attitudes will affect how such jurors view the evidence and accounting for them can make or break your case.