Resources – 2000
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Juries Are Increasingly Using Verdicts to Demand Change, Make Statements
By Mark Curriden
On a sweltering July afternoon three years ago, Susan Koons stood up in a fourth-floor Dallas courtroom to issue a warning to the Roman Catholic Church and, indeed, all churches: Clean up your act.
Those weren't her exact words, of course. She and 11 fellow jurors had just heard 11 weeks of trial testimony and officially they were ordering the Catholic Diocese of Dallas to pay $119.6 million in damages to 11 men who reported years of childhood sexual abuse by former local priest Rudolph "Rudy" Kos.
But their huge verdict - the largest ever against an American church - was only partly about compensating the people who sued, and much more about the future than the past. The Catholic Church had become a haven for pedophiles, the jurors believed, and corrective actions were necessary.
"We wanted to say ... that this must stop and never be allowed to happen again," explains Ms. Koons, the 55-year-old homemaker who served as presiding juror. "The message we intended to send was not just meant for the Dallas Catholic Diocese but churches everywhere, that they are not properly supervising their priests and pastors."
Like no time before, the 12 people in the American jury box are using civil and criminal verdicts to reach well beyond the cases in front of them and demand that institutions such as government, businesses or private organizations change their ways.
While plaintiffs' lawyers have long urged heavy dollar damages to "send a message" to a given defendant, these days jurors are increasingly willing - even eager - to answer calls for more monumental decisions, including some that would effectively establish or redefine public policy, say judges, lawyers and law professors.
And in many instances, jurors are getting action. An eventual $23.4 million settlement of the Kos trial verdict, for example, included a major new program by Dallas' Catholic Diocese to prevent sexual abuse by its personnel.
"We are witnessing the emergence of an activist jury pool," says University of Georgia law professor Ron Carlson. "People are frustrated by the inaction of the other branches of government and realize that as jurors they hold incredible powers of change. They are ready and willing to wield that power."
Adds Frank Newton, dean of the Texas Tech School of Law: "Our Founding Fathers would be stunned and dismayed to learn of the issues that today's juries are deciding."
*Last year, a Houston jury, hearing a child custody case, decided that a sperm donor is the legal father of a child born through in-vitro fertilization and gave the man some visitation rights. The decision, at least for that case, answered a question that Texas legislators unsuccessfully tried to address three times in recent years.
*A Florida jury is currently weighing a request by public health leaders for $300 billion in damages against cigarette makers. Legal and business analysts agree that if jurors deliver a verdict of that size - 40 times larger than any in history - they would almost certainly put the industry in bankruptcy proceedings.
*Later this year, a dozen jurors in Mississippi will be asked in effect to rewrite the operating rules for health maintenance organizations. HMO members are specifically suing for hundreds of millions in damages, alleging denial of care. A win could force the industry to abandon financial incentives now offered doctors to cut medical costs and tilt the current three-way relationship among patients, doctors and insurers in favor of doctors and patients.
*Within the next few months, the cities of New Orleans and Chicago will ask juries to order gun makers to reimburse millions of dollars in law enforcement and health costs incurred because of gun violence. Lawyers hope a large verdict will push the industry to make safer guns that include trigger locks and to change sales practices so weapons don't end up in the hands of criminals so easily.
An eight-month study by The Dallas Morning News and the Southern Methodist University Law Review identified more than 700 cases nationwide since 1990 in which jurors publicly declared that they intended their verdicts to have impact beyond the specific cases they had heard.
Fewer than 100 comparable examples showed up in the preceding two decades. For the 70 years before that period, SMU researchers identified only 17 cases in which jurors indicated they wanted their verdicts to have a broad influence.
In addition, nearly half of about 1,000 Texas and federal trial judges recently surveyed by The News and SMU School of Law say they've presided over cases in which jurors tried to use their verdicts to influence a broad political or social issue.
"Jurors are increasingly dissatisfied with their role of fact-finding," says state District Judge Merrill Hartman of Dallas. "Jurors now realize they are in a position of power, and they want to make changes or become problem solvers."
Jurors are taking pains to declare themselves when they're on a mission, issuing explanations when they announce verdicts, calling press conferences afterward or, in some cases, writing articles or books to explain the thinking behind a decision.
Many are also meeting privately with parties after cases end, scolding or urging changes in operations, policies or attitudes.
Jury verdicts can be inefficient tools for change, however, and the process can be messy. Some lawyers and scholars say the whole idea of juries throwing their weight around to change government, business or social behavior is risky.
Deciding social and public policy through jury verdicts is "a lousy way" of governing, says DePaul University law professor Stephen Landsman, an expert on the role of the jury in American culture. "Juries are so unpredictable and cumbersome." Still, he acknowledges that sometimes that's the only avenue to results.
Critics note that elected lawmakers - not juries - are generally supposed to set the rules for society.
A jury is "the least informed, the least representative and the least qualified body to determine public policy," says William Lytton, general counsel and senior vice president of International Paper. He calls the trend "very undemocratic and potentially dangerous" - especially with issues based heavily in science or technology.
Large verdicts designed to "send a message" about a broad problem can be unfair because the defendant may not be the only party responsible, some lawyers say. "Today's jurors come to court angry and full of biases, and they are exacting revenge," says Victor Schwartz, a nationally recognized litigation expert and general counsel of the American Tort Reform Association.
"I don't like it and don't think it's healthy, but there's no question it's happening."
Some people also question whether hefty damage awards work as intended.
In a recent study funded by Exxon, Harvard University law professor E. Kip Viscusi, who specializes in economics, said he couldn't see any safety or environmental differences between states that allow punitive damages in civil suits and states that don't.
"Thus, there is no deterrence benefit that justifies the chaos and economic disruption inflicted by punitive damages," he wrote.
However, the study by The News and SMU Law Review identified more than 250 cases in which jury verdicts led to some kind of change involving everything from potentially dangerous products and waste to the treatment of corporate employees and rules for police conduct.
"Don't tell me that juries don't make a difference, because the evidence contradicts that," says Stephen Daniels, a research fellow and jury expert for the American Bar Foundation. "The anecdotal evidence is pretty overwhelming."
He and other legal analysts point to verdicts that led to the demise or modification of such varied products as the Dalkon Shield birth control device, the Ford Pinto car, asbestos insulation and the fen-phen diet drugs.
One early example of political impact involved Texan John Henry Faulk, a radio and television personality blacklisted after a political action group named Aware Inc., labeled him sympathetic to communism. In 1962, a New York jury ordered Aware to pay Mr. Faulk $3.5 million - at the time, the largest damage award in history. The verdict effectively put Aware out of business and ended institutional blacklisting by anti-Communists.
Frustration at failings elsewhere in the governmental system is usually behind such militancy.
"When no one else has the courage to address the truly controversial issues and problems of our time, juries over and over have shown a willingness and ability to roll up their sleeves, study the facts and come to conclusions," says Mr. Landsman, the DePaul University law professor.
Even though he calls jury activism "an unhealthy trend because the legislature, not juries, should be dealing with these issues," Mr. Newton, the Texas Tech law dean, agrees with Mr. Landsman. "It is necessary... when the legislative and executive branches refuse to act."
A jury's agenda for change can show up in criminal cases, too. Lawyers say that's the only reasonable explanation for two acquittals of Dr. Jack Kevorkian in the deaths of people he helped to commit suicide. He was later convicted and is in prison.
The first two juries clearly put their own views about the right to die ahead of enforcing state homicide laws, says Tom Charron, director of the National District Attorneys Advocacy Center, a South Carolina educational program for prosecutors.
And in April, a Fort Worth jury stunned lawyers and judges when it found a 25-year-old Euless man guilty of raping his wife several times throughout their three-year marriage. They sentenced him to 10 years in prison. Prosecutors and women's groups say it was the first such decision in Texas - and one of the first nationally. After the verdict, jurors told reporters they wanted to encourage prosecutors to bring more cases. The National Organization for Women trumpeted the decision as "a significant political and legal statement."
Criminal juries can also make a point through "jury nullification," generally defined as a refusal on moral or political grounds to convict an obviously guilty defendant. Or in four states, including Texas, where juries are responsible for sentencing, they can deliver especially light punishment. Often such actions are intended to spotlight an unpopular law or redress police misconduct.
Start of an era
Legal analysts say the 1980s ushered in an era of "regulation by litigation" - the use of civil lawsuits to force changes within big business.
East Texas trial lawyer Scottie Baldwin sued a maker of asbestos in Jackson, Miss., over a client's lung disease in 1982. In scores of previous suits against asbestos makers, juries had ruled for the defense or awarded only small damages.
But this time the jury reacted to allegations of corporate misbehavior and, as punishment, ordered Johns-Manville and Raybestos-Manhattan to pay more than $1 million to James Jackson, a sheet metal worker from Pascagoula. The verdict, lawyers say, spawned waves of new asbestos suits.
The tide prompted U.S. Chief Justice William Rehnquist to plead with Congress to tackle a new asbestos law, but it didn't. As suits piled up, several companies fled to bankruptcy court, including the industry leader, Johns-Manville.
When it sought court protection from creditors in 1982, it faced more than 15,000 asbestos lawsuits that threatened to consume its $2 billion in assets. After six years, it worked out a plan to pay an estimated 500,000 victims well into this century.
Tobacco companies are now in a similar jam. As with asbestos, juries for four decades refused to side with sick smokers who blamed cigarette makers for their diseases. Then in August 1996, a Jacksonville, Florida, jury awarded $750,000 to Grady Carter, who said 44 years of smoking Lucky Strikes gave him lung cancer.
The jury, after hearing testimony about industry efforts to cover up the risks of smoking and to target teenage customers, found the cigarettes sold by Brown & Williamson Tobacco Co. "unreasonably dangerous and defective."
Although tobacco giants Philip Morris and R.J. Reynolds weren't defendants in that suit, officials with both companies say the decision ricocheted through their offices. "It was definitely a wake-up call," says Philip Morris vice president Steve Parrish.
Although the industry agreed two years ago to repay state governments for money they spent on sick smokers over the years, that settlement did nothing to address the claims of individuals.
All of a sudden that new door was open and a series of multimillion-dollar verdicts poured through. The latest came in March, when a San Francisco jury slapped a $20 million verdict on Philip Morris and R.J. Reynolds tobacco companies.
"I found it shocking that these companies behaved in such a disgraceful manner and that the government has allowed them to get away with it," says Michael Criscola, a pizza parlor operator and the jury foreman.
Now, the industry is fighting for its very existence in a Miami case in which lawyers for hundreds of thousands of smokers are seeking tens, possibly hundreds, of billions of dollars in punitive damages.
And in defending themselves to jurors, tobacco companies are replaying the "send-a-message" theme - their lawyers in opening statements declare that they got the message sent by other juries, have changed how they do business and don't need to be punished any further.
Changing the gun industry
Lawyers for gun manufacturer Smith & Wesson say a New York jury in Brooklyn last year led that company to change how it does business.
Smith & Wesson wasn't one of 15 defendants found liable for $560,000 awarded to families of seven gunshot victims - the first verdict of its kind in the nation. But lawyers privately acknowledge that the verdict contributed to a decision in March to settle a handful of lawsuits filed against it by cities.
The city suits, as in the Brooklyn case, contend that gun makers market their products in a way that fuels illegal trading. So far, Smith & Wesson is the only gun maker to settle lawsuits.
In its settlement, announced by President Clinton and Attorney General Janet Reno, Smith & Wesson agreed to change its marketing, install safety locks and implement other safety measures to make guns safer.
In the Brooklyn case, "we really debated whether it was our job to send some message," and how that might be seen by the public, says one juror who asked not to be identified. "In the end, we decided, if not us, who? Nobody else was saying this is wrong, and we believed it was wrong."
Something more to say
After the verdict, a few of the jurors explained their unhappiness to lawyers for the gun makers. "We told them our verdict expressed our opinion that the industry is not being as responsible as it should be," says the juror.
Indeed, judges say that jurors are increasingly sending written messages with their decisions to encourage some kind of remedial action.
Accompanying its $119 million award, the jury in the Catholic Diocese of Dallas case submitted a one-page letter to church officials urging "significant changes to your policies in regard to child abuse." District Judge Anne Ashby read the statement in open court at the jury's request.
"Just in case the diocese didn't understand exactly what message we were sending through the $119 million verdict, we decided to make it extra clear to them," says Ms. Koons, the presiding juror.
The diocese's attorney, Randal Mathis, wasted no time in telling the jury, "There's absolutely no doubt the diocese received your message very, very clearly."
The judge had previously ruled that Mr. Kos, the former priest, was liable for the sexual abuse; the jurors assessed damages against the diocese because they concluded that it ignored and covered up Mr. Kos' activities.
As for Ms. Koons, she says she hopes their verdict caused churches and private groups that deal with children on a regular basis to re-examine their policies regarding abuse.
"I pray that pastors and priests and rabbis remember our verdict and work hard to make sure this never happens again."
Diocese Sells Former School
By Kendall Anderson
St. Ann's School, a community treasure for many local Mexican-Americans, was sold to a company that may turn it into office space, Catholic Diocese of Dallas officials said Friday.
The diocese sold the building at Harry Hines Boulevard and Ashland Street to Harwood International for an undisclosed amount to help pay debt incurred from the settlement in the Rudolph "Rudy" Kos trial and other pedophile cases involving priests, officials said.
"We regret" the sale, said Bronson Havard, diocese spokesman. "We took our time looking and trying to plan, but we have to admit the realities of the situation and our fiduciary responsibility to reduce the debt, principally caused by the pedophile trial."
Harwood spokesman David Williams said that the building could be used as office space for a dot.com or fiber-optics company but that no decisions or agreements have been made.
The once-dilapidated area around the site has become valuable because of the sports arena being built nearby.
Some who fought unsuccessfully to have the entire former church and school designated as a historical landmark said they were upset by the news. The same sentiments were expressed in 1998, when parishioners said it would be unfair to sell part of their heritage to pay for the diocese's mistakes.
"It's disgusting because the diocese could have raised the money somewhere else. The sad thing is they put us in a position where they had to raise some money for the sins ... and they are using the property that was paid for by Mexican-Americans" through tuition and taxes, said Albert Gonzalez, chairman of Save St. Ann's. "I hope when they go to sleep tonight they are comfortable with what they did."
The diocese first put St. Ann's on the market in 1998, eventually closing it in November of that year. Some parishioners were critical at the time, in part because the closure came days after a recommendation that the city grant it historical landmark status. They also didn't want the property to be sold to pay for the diocese's debt related to settlements in pedophile cases.
In 1997, a Dallas civil jury found that the diocese committed "gross negligence" in its handling of Mr. Kos.
Eleven men reported childhood sexual abuse by the former local priest. The abuse allegedly occurred at local Catholic churches between 1981 and 1992, court documents said.
The jury awarded $119.6 million to plaintiffs in the largest clergy-abuse judgment in history.
The diocese has five years left to pay off about $10 million in connection with settlements in the Kos case and several other sexual-misconduct cases involving priests. Its insurers have paid more than $20 million in the cases, and some litigation is pending.
Mr. Kos is serving a life sentence in prison.
Save St. Ann's tried to buy the property while urging the city to consider granting it landmark status. The city decided in April 1999 to grant historical landmark status to part of St. Ann's, which was built in 1927.
Council member Veletta Forsythe Lill said she hopes the new owner asks the council to designate the entire site as a historical landmark.
"Obviously my first choice would have been for the Hispanic community to utilize this building," she said. "However, the preservation of this site is a great victory for the community. Miracles do happen."
Mr. Williams, the Harwood spokesman, said earlier in the day that whatever the company developed, "our goal is to use the whole building."
He said company officials are aware of the strong feelings some people have about the site.
"We feel the entire building is an integral part of the community," he said. "We think it can be restored to a prominent and respectful place in the community."
One company has approached Harwood about the property, but Mr. Williams declined to say which one.
Mr. Gonzalez said it was hard to feel comforted by the sale.
"My grandparents and others paid the tuition and earned the money that built St. Ann's," he said. "We're very disappointed but not surprised."
Ms. Lill was more upbeat.
"A sad chapter for this site has been ended," she said. "I hope that this will be a new beginning."
[Staff writers Ed Housewright and Michael Saul contributed to this story.]
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