I talked yesterday about jurors and numeracy, and a little on Monday about jurors and literacy. Today, I had intended to fill out the list and look at problem-solving skills. What I didn't know was that the Supreme Court would choose yesterday to give jurors a new problem to solve.
The 2003 study I've been discussing this week, by the Organisation for Economic Co-Operation and Development, measured not only literacy and numeracy, but also problem-solving ability. The researchers didn't ask the problem-solving questions in the United States, but they asked them in five other countries that scored both above and below the U.S. on the other measures. From almost a quarter of adults in Norway to two thirds in Italy, large proportions of adults in all five countries could make no more than "simple inferences, based on limited information stemming from a familiar context."
That statistic was still in my mind when I read Philip Morris USA v. Williams, issued yesterday. Philip Morris creates a new rule: juries may not use punitive damages to punish defendants for harm they have caused to persons who are not parties in the case. Juries may, however, consider evidence of harm to third parties in deciding whether the defendant's conduct was reprehensible enough to deserve higher punitive damages. When I start using that many italics, I know I'm not being clear, so here are the Court's words:
Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible . . . Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.
The Oregon Supreme Court had struggled with this distinction, saying, "It is unclear to us how a jury could 'consider' harm to others, yet withhold that consideration from the punishment calculus." Indeed, said the Supreme Court yesterday, that point
raises a practical problem. How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant one -- because, for instance, of the sort of evidence that was introduced at trial orthe kinds of argument the plaintiff made to the jury -- a court, upon request, must protect against that risk.
Yes, it's a practical problem. The list of American adults who are going to have trouble drawing the line between reprehensibility and direct punishment begins with Justice Stevens, who I'm guessing would have scored fairly high in the OECD problem-solving study. He wrote in dissent:
This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant's conduct, the jury is by definition punishing the defendant -- directly -- for third-party harm.
The list goes on to include the Oregon Supreme Court majority. Many jurors will miss the distinction as well. Whatever your take on Philip Morris as constitutional analysis, explaining its rule to jurors will take all the problem-solving skills you have.