CONTACTS 

SUBJECTS
Jury Duty
Engineering, Professional Standards
Punitive Damages
Feel Good Management
Risk Management
Management productivity & Teamwork
Discovery, Strategic Resource
Murphy's Law, avoiding mistakes
Small Problems Ignored, Slippery Slope to Cover-up

1311 -    ..
1312 - Summary/Objective
1313 -
131301 - Followed up work at ref SDS 6 line 26, and discussion with Carmen at
131302 - ref SDS 7 line 42.
131303 -
131304 - I was chosen for the initial jury panel.  Was questioned for about an
131305 - hour by plaintiff's counsel.  Will return tomorrow at 1000.
131306 -
131307 - This record turned out to present an opportunity to develop the ethos
131308 - of "feel good" management.
131309 -
131310 -
131311 -
1314 -
1315 -
1316 - Progress
1317 -
131701 - I was the first juror chosen.  After about 2 hours all 12 jurors and
131702 - 6 alternates were selected.  The Judge explained the case and began
131703 - examination of jurors.
131704 -
131705 -     This lawsuit is brought by Millie Valentine who had elective
131706 -     (cosmetic) breast implant surgery in the 1970's.  The breast
131707 -     implants were manufactured by Baxter Corporation.  Some years
131708 -     after the surgery plaintiff began to have health problems.  In
131709 -     time, the problems grew more severe and varied.  Ms. Valentine
131710 -     alleges that the implant devices were defective and thereby
131711 -     caused her initial and collateral health problems.  She seeks
131712 -     damages solely from Baxter.  There was no mention of defective
131713 -     surgery, or of inadequate advice along the way, nor that her
131714 -     later problems were not properly diagnosed, treated, etc.
131715 -
131716 -     The plaintiff is divorced from her husband.  The husband is a
131717 -     co-plaintiff seeking damages for loss of spousel affection, going
131718 -     back some years.
131719 -
131720 -     The Judge gave instructions and questioned the jurors as a group.
131721 -     Some members of the initial panel presented reasons why they
131722 -     should be excused from serving on the jury due to hardship and
131723 -     various biases.  After this explanation and juror query by the
131724 -     Judge, plaintiff's counsel was asked to examin prospective jurors
131725 -     based on responses to the questionnaire filled out last week, see
131726 -     ref SDS 6 3385.
131727 -
131728 - Since I was juror #1, I was the first juror questioned.  Plaintiff's
131729 - counsel asked my opinion on awarding punitive damages?
131730 -
131731 - I said I would try to follow the evidence and the Judge's
131732 - instructions on awarding damages.
131733 - ..
131734 - Plaintiff's counsel asked how I "feel" about making large awards
131735 - against corporations.
131736 -
131737 - I said it depends on the circumstances.  Civilization has progressed
131738 - well by combining incentives that guide conduct toward outcomes that
131739 - benefit the community.  Punishment for harmful behavior and rewards
131740 - for good behavior have worked for thousands of years.  So I have no
131741 - animus against properly directed punitive damage awards. Concern
131742 - arises where a large punitive award relative to the actual (direct)
131743 - damages may do more harm than benefit to consumers, if they are denied
131744 - reasonably safe and beneficial products at affordable prices.  Such a
131745 - result may occur where punitive awards make the cost of error greater
131746 - than the rewards of success.  I cited the Penzoil v. Texeco case
131747 - involving the purchase of Getty Oil, as an example, although that was
131748 - not a personal injury matter.  (Other examples are sexual harrassment
131749 - awards, and the McDonald's case where a women placed a cup of hot
131750 - coffee in a manner not recommended by the vendor and which was likely
131751 - to cause harm).
131752 -
131753 - If a pattern of widespread improper conduct were shown to have
131754 - occurred, then a large punitive award may be warranted.  This would
131755 - be especially so (but not the only grounds), if the defendant had
131756 - acted specifically to harm the plaintiff (which normally is not the
131757 - case, and likely not so here).
131758 -
131759 - I also indicated my feeling would depend on the extent to which a
131760 - punitive award would punish those who caused the harm, rather than
131761 - adversely impact a lot of innocent people who happen to work for a
131762 - large company.  Often by the time an award is made those who caused
131763 - the original problem are no longer with the company, and better busi-
131764 - ness practices have long since been instituted, because the company
131765 - has an affirmative interest to keep its customers satisfied.  In this
131766 - particular case where the product at issue was evidently manufactured
131767 - in the mid-1970's, many if not most of those directly involved in
131768 - decisions that led to the plaintiff's claim, have either retired or
131769 - even died, since the actual work of design, manufacture and testing
131770 - would have been done in the 1960's.
131771 -
131772 -
131773 -  ..
131774 - Mistakes in Business Ignored Greases Slippery Slope to Cover-up
131775 -
131776 - Next I indicated that most product defects do not occur because a
131777 - group of people set out to harm someone, which would warrant
131778 - punishment as retribution and encouragement toward good conduct.  Big
131779 - problems usually start out as a small inadvertent error, ref SDS 3
131780 - 5583, that is overlooked in the rush to meet cost and schedule
131781 - objectives of consumers hungry for the latest innovations at the
131782 - lowest possible cost.  Gradually over time isolated and disparate
131783 - information indicating a problem, is ignored in hopes that bad news
131784 - will just go away, or that someone else will fix it.  Inertia then
131785 - fosters an "official view of reality" among a narrow band of talented
131786 - and otherwise ethical people who go to church, love their children,
131787 - support the arts and worthy causes, but never-the-less suddenly find
131788 - themselves on a slippery slope toward a cover-up.
131789 -
131790 - An example is the scenario of the ship sinking a storm at sea reported
131791 - on 940611. ref SDS 2 8473
131792 -
131793 - Such "cover-ups" are endemic to all organizations, be they law firms,
131794 - churches, medical companies, contractors, government agencies, and are
131795 - supported by hierarchy and social pressure to "go along to get along"
131796 - (at least until retirement).  Since the idea of punishment is to
131797 - supplement the rewards of success in doing things correctly, can
131798 - punishment really accomplish its mission if borne mostly by those who
131799 - had nothing to do with the problem?  What would be the point?
131800 -
131801 -     I indicated that this is a complex question of accountability
131802 -     which should be considered in writing, rather than treated
131803 -     entirely extemporaneously.  Actually, I looked at part of this
131804 -     issue with Stan Mosk in 1991, at ref SDS 1 line 88, when we
131805 -     discussed the practice of "discovery" relative to SDS diary
131806 -     records, and recent trends by organizations to destroy records
131807 -     and avoid creating records in order to avoid accountability.
131808 -
131809 -        [These views appear to have resulted in my being excused from
131810 -        the jury under peremptory challenge by plaintiff's counsel the
131811 -        next day, ref SDS 8 line 66.]
131812 -
131813 -     I did not have the presence of mind to offer the idea that the
131814 -     best solution to poor workmanship is to lift the capacity of
131815 -     people to "think, remember and communicate" as advocated in my
131816 -     paper "New World Order, Needs Old Time Religion., ref OF 2 line
131817 -     103, and in POIMS at ref OF 1 line 81.
131818 -
131819 -     Additionally, I should have stated that, like the attorneys and
131820 -     the Judge, my personal feelings about good public policy, should
131821 -     be held in check, since the rationale of the law has been worked
131822 -     out in other forums (e.g., the legislature, talk shows, essays,
131823 -     law reviews, and Phd papers).  That is why I initially indicated
131824 -     I would do my best as a juror to apply the law to the evidence,
131825 -     as instructed by the Judge.  Expressions of personal views about
131826 -     the rationale of legal remedies may leave the impression that
131827 -     jurors should follow their feelings rather than the Judge's
131828 -     instructions.
131829 -
131830 -
131831 - Counsel asked if my background in arbitrations would inhibit making
131832 - an award of punitive damages against a large corporation.  I said my
131833 - background would not deter awarding damages according to proof, and
131834 - noted that such procedure is followed in construction arbitration.
131835 -
131836 - Counsel asked about Welch v. State, 139 CA 3rd, 586, shown in the
131837 - juror questionnaire.  I said that I was successful on appeal, but
131838 - later lost the case.
131839 -
131840 -     I did not mention this was a 15 year effort commencing in 1975
131841 -     about the time plaintiff's case in the instant matter began.  It
131842 -     was, as well, a David v. Goliath struggle in which I was seeking
131843 -     a large award, partially for the reasons advocated by counsel, of
131844 -     sending a message to the "system." So, if anything, I am pre-
131845 -     disposed to the plaintiff.  One distinction between public works
131846 -     contract disputes and product liability is that competitive
131847 -     bidding can become an "us" v. "them" environment, where public
131848 -     officials and/or contractors via for relative advantage based on
131849 -     what happened to them on prior projects and disputes.  Those who
131850 -     manufacture products are at the mercy of their reputation in the
131851 -     market, and they are much further removed from individual
131852 -     customers than are those who prepare designs for construction
131853 -     projects, relative to contractors who are expected to apply the
131854 -     designs.  Therefore, in my mind the need for punitive damages in
131855 -     the latter case seems less apparent.
131856 -
131857 -
131858 - We took a recess at noon.
131859 -
131860 - At 1430 we were back, but did not go into the courtroom until oa 1500
131861 - or so.  I was asked a final question by Plaintiff's attorney after
131862 - the recess.  He then moved on to the other jurors.  Everyone was
131863 - concerned after lunch that if counsel took as long with the other
131864 - jurors as he did with me, that it would take weeks to impanel the
131865 - jury.  However, questioning of the remaining jurors went much
131866 - quicker.
131867 -
131868 -
131869 -
131870 -
1319 -