Potential Jurors' Moral Commitments and the Risk-Benefit Test in Products Liability Defect Cases

        In a product defect case involving serious bodily injury or death, the last thing a defense attorney wants to do is talk about how the benefit to society of the client’s product as presently designed outweighs the risk of injury or death to a single person (or few persons) when compared to a practical and feasible alternative design that would reduce or eliminate the present risks. The risk-benefit test for product defects, however, requires a defense attorney to start that conversation and convince a jury that the benefits of a product outweigh its risks, rendering the product reasonably safe, even in the face of an actual injury or death that relates in some way to use of the product. This is a daunting task, especially if the defense attorney lacks information about jurors to determine whether they are really willing or able to engage in such a calculation.

        Trial attorneys are provided wide latitude during voir dire to investigate potential jurors’ prejudices and biases. Knowing how to press potential jurors’ moral reasoning will provide enough information to identify, above a mere guess, which jurors are most likely to engage in a risk-benefit calculation. An easy test exists to weed out potential jurors most inclined to reject a defendant-friendly risk-benefit analysis.

        There are generally two major moral views—please forgive this oversimplification: utilitarian and deontological. Utilitarians support the greatest good for the greatest number. Deontologists on the other hand, support treating each person as an end in herself and never as a means to an end. Utilitarians tend to be more receptive to risk-benefit analyses than deontologists.

The Trolley Car Problem

        A famous moral inquiry, introduced by Philippa Foot, provides the perfect test to get potential jurors talking and to press their moral limits. Imagine you are overlooking a trolley track. In the distance you see a trolley car traveling at a high rate of speed and you notice that it lacks a driver. You also notice that it is headed straight toward five unaware people who will surely die if no one intervenes to stop or divert the trolley.

        You are the only person at the station. Next to you is a lever that will divert the trolley down the only other path. On that path, you notice a single unaware individual who will surely die if the trolley heads in that direction.

        What do you do? Do you pull the lever, thus diverting the trolley toward the one unaware individual? Or, do you allow the trolley to take its course toward the five unaware people? Remember, no matter what choice you make, death will ensue. The only question is, how many people will die? One or five?

        Same scenario, except there is no lever next to you that can divert the trolley. Instead, next to you stands a heavy person. The heavy person is turned away from you. The heavy person is exactly heavy enough to stop the trolley dead in its track. If you push the heavy person onto the track as the trolley approaches, his body will stop the trolley. The heavy person will die, but the five people on the track will live. If you do not push the heavy person onto the track to stop the trolley, the trolley will continue on its path and surely kill the five unaware people on the track.

        What do you do? Do you push the heavy person onto the track to save five people? Or, do you allow the trolley to take its course toward the five unaware people, who will surely die, and leave the heavy person alone?

        Most people opt into pulling the lever to divert the train, but opt into inaction when there is only the heavy person to stop the train. Moral philosophers debate the reasons for this seeming disjunction, because the results would be the same if you pulled the lever as if you pushed the heavy man on the track: one person dies, five people live. Some people explain the result in terms of agency: when you pull the lever, you are not complicit in the death of the one person on the track the same way that you would be complicit if you pushed a person to his death, even though you saved five people. But this complicit argument places to much weight on proximity. An action is required in either scenario—pull a lever or push a person—and the person doing either action knows in advance the outcome—death. 

Reason-Giving and Potential Juror Identification

        The upshot of asking potential jurors for their answers to this moral quandary is (1) you can identify potential jurors who will not even entertain pulling the lever. The value of life is something that outweighs any and all utilitarian calculations. You might try to rehabilitate this potential juror to see if she can never engage in any utilitarian calculation. For example, even truly committed deontologists waiver in their commitment when the stakes are substantially increased: If five-hundred children were on one track and would surely die if you did not push the lever to divert the trolley onto the track with one person, would you pull the lever? You might even change the scenario: There is no lever and no heavy person; there is only a heavily sedated gorilla on the platform that will stop the trolley and save five people if you push the gorilla on the track. You will find that nearly everyone will have no problem pushing the gorilla onto the track to save five people. Those persons who would not even entertain pushing the gorilla onto the track to prevent five people from dying may not be good candidates for your products liability case. 

        (2) You can identify potential jurors who will entertain pushing the heavy person. These are serious utilitarians. You at least know that these potential jurors are willing to engage in the type of calculation necessary to defend your client.

        (3) By engaging in this intellectual exercise, you treat the potential jury pool as your intellectual peers and may gain their trust. You will find that this exercise gets the jury pool talking and interested. They will laugh, show concern, and ask questions of their own.