Philadelphia, Monday, July 10, 1995

The Legal Intelligencer

THE OLDEST LAW JOURNAL IN THE UNITED STATES

ARE JURIES AFFECTED BY TORT REFORM?

Defendants Gain Confidence
By Shannon P. Duffy
U.S. Courthouse Correspondent

Are juries reacting to congressional talk of tort reform by rejecting plaintiffs' legitimate claims in product liability cases? Or are corporations simply getting more savvy and trusting juries to do the right thing when a manufacturer has lived up to its responsibilities?

The answers depends on who's being asked, but a defense verdict in a recent trial before U.S. District Judge Robert S. Gawthrop 3d suggests that both views may have some truth to them.

"Five years ago, a jury would probably have had no problem awarding $1 million in this case," said attorney James T. Owens of the West Chester firm Owens D'Ambrosio & Nescio, who represented Timothy K. Spillane in a products liability suit against Georgia a Pacific Corp.

JUROR APOLOGIZED
"One juror came up to me in tears after the verdict and told me she was sorry," Owens said. "I know that impacting on them was all this talk of tort reform in Washington… Federal juries are increasingly conservative. Defendants are having a field day."

But defense lawyer John G. Devlin said, "This jury conducted its own tort reform." The lesson of the verdict, he said, is that "corporate defendants need not panic and settle out of fear that they will be hit with huge verdicts if the facts are on their side."

May cases are "settled out of sheer fear," he said, but a "properly trained trial lawyer can make the system work."

MCDONALD'S VERDICT
In discussing the verdict with some of the jurors, Devlin said, he learned they were concerned about tort reform issues. One, he said, expressed dismay over the $3 million in punitive damages awarded to a woman who sued McDonald's over burns from too-hot coffee.

In the end, Devlin said, the jury "was able to discriminate" in weighing Spillane's claims.

Spillane, a roofing contractor, claimed he fell from a roof that was coated with a Georgia Pacific sealant, Tough-Guard, fracturing his ankle and shattering his heel. After fusion surgery, a bone graft from his hip, and the implantation of two screws, he will most likely limp for the rest of his life.

Two jurors started to cry during Spillane's testimony, prompting Gawthrop to convene mid-trial settlement talks before U.S. Magistrate Judge James R. Melinson.

But as Devlin describes it, the facts were on his side.

LABEL WARNING
Spillane's claim boiled down to failure to warn-despite the fact that he admitted he had read the entire warning label on the Tough-Guard which read: "Caution: Slippery when wet. Do not use unless completely dry. Follow proper safety precautions." It also said that roofers walking on Tough-Guard should use a safety rope and appropriate shoes.

Owens attacked the warning as inadequate. An expert witness on warning labels, E. Patrick McGuire, told the jury that the word "caution" was not a strong enough "signal word" and that "warning" or "danger" would have been stronger. Because Tough-Guard is significantly more slippery than ice when wet, and even slippery when dry, McGuire said the word "danger" should have been used.

McGuire said "caution" is used to convey a risk of minor injuries, while "warning" conveys more serious risks and "danger" implies that the risk could be life-threatening.

Devlin tried to block McGuire from testifying, but Gawthrop ruled after a pre-trial hearing that his expertise was adequate and his opinion sufficiently reliable under the U.S. Supreme Court's recent ruling in Daubert v. Merrill Dow. He also ruled that it "fit" the case - a requirement outlined by Circuit Judge Edward R. Becker in the most recent ruling in In Re: Paoli Railyard PCB Litigation.

OPINION TESTIMONY
But Owens lost the next battle when he tried to block Devlin from presenting opinion testimony from a layman. Applying the test recently announced by the 3rd Circuit, Gawthrop ruled that a roofing foreman could testify that he noted on his logs that Spillane "should not" have gone on the roof before the morning dew had dried.

Owens argued that the warning was inadequate because it was printed not on the product but on the box, which is often thrown away. Often the installer does not read the box, he said. And the "slippery when wet" warning was incomplete because the Tough-Guard is also quite slippery when dry.

But Devlin told the jury that Spillane also had a graduate degree in English. Since he admitted he had read the warning, he argued, the case was a simple one.