THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700
S U M M A R Y
DIARY: February 7, 1995 10:00 AM Tuesday;
Appear for jury duty at SF Superior Court.
2...in Business Ignored Greases Slippery Slope to Cover-up
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Engineering, Professional Standards
Feel Good Management
Management productivity & Teamwork
Discovery, Strategic Resource
Murphy's Law, avoiding mistakes
Small Problems Ignored, Slippery Slope to Cover-up
1311 - ..
1312 - Summary/Objective
131301 - Followed up work at ref SDS 6 line 26, and discussion with Carmen at
131302 - ref SDS 7 line 42.
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.
131307 - This record turned out to present an opportunity to develop the ethos
131308 - of "feel good" management.
1316 - Progress
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.
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.
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.
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.
131728 - Since I was juror #1, I was the first juror questioned. Plaintiff's
131729 - counsel asked my opinion on awarding punitive damages?
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.
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).
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).
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.
131773 - ..
131774 - Mistakes in Business Ignored Greases Slippery Slope to Cover-up
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.
131790 - An example is the scenario of the ship sinking a storm at sea reported
131791 - on 940611. ref SDS 2 8473
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?
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.
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.]
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.
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.
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.
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.
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.
131858 - We took a recess at noon.
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.