I have written here before that high dollar verdicts often indicate a jury became angry about a lawsuit. In Velez v. Novartis Pharmaceuticals Corp., the jury awarded $250 million in punitive damages. See posts here and here. This is the largest punitive damage award in any class action lawsuit, I am told. Novartis, the reader will recall, was a class action lawsuit alleging gender based discrimination against a large pharmaceutical company. The case had some damaging statements made by managers, which statements showed anti-female bias.
It now appears that yes, the manager’s statements were damaging. But, the lawyer representing Novartis may have had as much as anything to do with upsetting the jury. It turns out that the lead defense attorney himself said some pretty offensive things. For example, in his closing argument, he said:
"The first [plaintiff] – first of all, I’ve never seen anybody cry so
much on the witness stand in my life. She didn’t have very much to cry about. The first thing that was said to her, according to her, was: ‘Can you give me two good years before you get pregnant, Tara?’ And she could hardly get that out on the witness stand. It’s like she had beeen knifed. Honsetly. What was wrong with this woman? She was so fragile. And she cried all through her testimony. Nothing bad ever happened to her. She just didn’t get entered into the managment development program."
The defense lawyer essentially made fun of the first employee because she cried so much. Conventional wisdom holds that juries lose sympathy for witnesses who cry too much. If so, this particular defense lawyer reversed that dynamic completely.
He did worse than that. The defense lawyer also said in his opening statement, the part of the trial where he introduces the jury to his case, that one manager who said some pretty bad things "wasn’t that bad a manager. He was just terrible with women."
Members of the jury always start a little annoyed. They do not want to be there. Jury service is critical to our democracy. But, most jury members would prefer to be home taking care of kids, or be at work protecting their jobs. Not at court listening to someone tell them that one of the main harassers was really ok, except for a little gender bias thing.
He also discussed in his closing the merits or lack of merits in one woman trying to confront the man she said raped her. "If I were a woman, the male, older defense lawyer said, "I would not have done that." Later, he essentially admitted there was some assault on the women employees. That is, they had been touched inappropriately, and worse. But, as he said, "it was not because she was a woman. It was not because she was assaulted. It was just dumb." He referred to some of the managers as "idiots."
So, after a month long trial concerning thousands of women victims, the best the defense can argue is that what they did was "dumb" and the managers were "idiots." Yes, jury members do get annoyed when they think they have spent a month away from jobs, away from families simply because management was "dumb." That is when juries award large verdicts.
As I explain to my clients, most defense lawyers manage bad facts much better than this. Typically, a good defense lawyer finds a way to apply the best spin to any set of bad facts. With good coaching, most witnesses at least sound better, even if the facts themselves do not improve. So, yes, it is not realistic to ask for $250 million in punitive damages as a settlement offer, I tell my employee clients. A big part of my job is educating clients about the realities of what to expect from a jury. But, lawyers like this defense lawyer for Novartis Pharmaceuticals make my job so much harder.