the Verdict

This morning the jury reached a verdict.

But first the back-story…

Against all plausible odds, I was selected for jury duty on a civil product-liability case recently. I briefly mentioned that I was selected for jury duty in a previous post, but could not go into any detail while the case was still in litigation. Those are the rules.

I had never served on a jury before, only coming close once, over ten years ago. I wasn’t selected then because I had had dealings with one of the attorneys for the plaintiff, a certain Louis Magazzu. That was way before our current antagonistic relationship.He had represented me previously, if you could call him doing nothing on my behalf on an insurance claim, which would have surely placed my sympathies on the side of the defendant… but that is water under another bridge.

Anyway, when the trial commenced, the jury was directed to not discuss the case with anybody, including each other. We were instructed that if we saw an article in a newspaper about the trial, were were to immediately put the paper down. That was a difficult order for a news junky like me. Fortunately this story was off the radar of the local press. It is consistent with the way the local press ignores stories of voter fraud or political impropriety among candidates that they favor.

And, of course, we were told that were were not to do any research on our own concerning anything that might have to do with the case. We were to rely only on the testimony and evidence presented during the trial. And anybody that had experience in engineering that would have been pertinent to the case was excluded from even being considered for the jury. Considering these sorts of restrictions regarding the jury pool, I can now understand some verdicts that to me seem nonsensical.

Upon questioning, when I was selected for this case, I thought for sure my notoriety and outspoken political stances would have prejudiced one or the other sides against having me as a juror. Both sides seemed content, and I was juror #7 out of 8, but the last juror selected. That will make sense if you have ever witnessed the selection process.

Most people attempt to get out of jury duty. Only once did I ever request to be excused – I was self-employed and could not possibly afford to lose even one day of income. That was three years ago. When Mike, another juror that was selected just before me, said that his bumper sticker said “I would rather be shooting Communists” was told to take seat #3, all bets were off!

Sure, I could have put my time to a more profitable use – any money I can earn helps extend the unemployment benefits a little further.  But I am also always up for new experiences. Serving on a jury was enlightening.  We had an excellent judge, and an interesting (at least to me) case. It involved a local man whose lifelong past-time has been restoring historic automobiles. His shop and all of his cars, tools and equipment were destroyed in an unimaginable conflagration.

As the plaintiff, he was suing the foremost battery manufacturer in the world. He claimed that a defect from the factory caused the sealed lead acid battery to self-ignite, which in turn burned his shop almost to the ground.

As soon as the case was over, and I was free from restraints, the first thing I did was crank up Google and begin surfing the internet. Part of that is curiosity, but another part is to ensure myself that the decision I made, and the reasons, were justified. Of course the easy verdict would be to reward the small guy, the guy who could least afford it. After all, he was asking for $700,000. To Steve Roell, Johnson Control’s CEO, that is chump change. After all, he was compensated to the tune of $22.34 MILLION this year.

As satisfying as it would be to stick it to “the man” – and anybody that thinks these sorts of incomes are in any way shape or form reasonable needs professional help – I was sworn as a juror to make a decision based on the facts and on the rule of law. I wasn’t selected to make a statement for social reform.

My next search was for “batteries self-igniting”. This was the basis of the plaintiff’s lawsuit, that a battery manufactured by Johnson Controls just self-ignited, buy itself, with no outside factors. This conflagration, in turn, burned down the plaintiff’s shop.

Now the damage done was extraordinary – there was a 1959 Corvette that was nothing but a 3 inch deep pile of melted fiberglass. A car on a lift was melted, with back end drooping and front end melted so that it touched the floor. The heat had to be intense, so it is amazing that two different fire investigators, working separately, were both able to trace the origins of the fire to the engine compartment of a Grand Prix in the shop for repairs.

That Grand Prix, and the Energizer battery in particular, were the focus of the trial. We, the jury, had to determine if that battery was defective when it left the manufacturing plant, and if so, did that defect cause it to spontaneously burst into flames?

During the trial I learned a lot about batteries, and even more about the law. I learned that there has been no report ever of a battery self-igniting. The manufacturer claims that is because it is a physical impossibility.

I have done an extensive search on Google and on Bing (I hate Bing, but had to cover my bases) and found no report on batteries self-igniting, or any report that they are able or unable to self-ignite. Now before I get rude comments from people claiming to have seen a battery explode – that was NOT the complaint.

Neither party to this lawsuit denied that batteries explode. As the above video demonstrates, batteries explode. The reason, explained by the defendant and backed up by my recent research is that lead acid automobile batteries are wet-cells. The battery consists of lead plates immersed in a solution of water (inflammable) and sulfuric acid (also not flammable). When batteries are charged, gases are formed – primarily hydrogen.

Now this, I remember from chemistry class in junior high school. Water (H2O) is comprised of three molecules, two hydrogen and one oxygen) Both are explosive in their native states. Modern batteries have a space above the lead plates, with one-way vents that allow gases to escape without allowing gases, or worse, flames, to enter. That is why batteries have all of those warnings not to smoke near them, or to place near an open flame. Just like the Hindenburg, the hydrogen gas will explode when ignited by a spark.

Now during the trial, I had to take all of this information at face value – realizing that the expert testimony for both sides was from paid professionals. I had to pick and choose what testimony to believe, and what not to accept. For instance, when the witness for the defense, a retired, long-time employee for the company being paid a lot more than I was for sitting in the jury box claimed that there was no way a defective battery could leave the factory, I decided to reject that testimony.

I have worked for manufacturers of various products, and know for a fact that no matter how meticulous the inspection process, product that doesn’t meet specification will somehow make it past quality control and out to the customer. It doesn’t matter if that product is glassware, copier machines, dentures or in this case batteries. And as a consumer, I don’t think there is an adult alive that has not purchased a product that was defective out of the box.

And nobody is going to tell me that out a several million batteries a year, there is no possibility of one bad one slipping undetected. But, with all of the expert testimony, nobody was able to point to and prove any specific defect in the battery in question. One expert, with a PhD in physics, almost convinced me that it was possible for such a battery to self-ignite.

So, I accepted the theory that self-ignition was a possibility. I agreed that it was not only plausible but probable that a defective battery left the Johnson Controls plant once in a while.

So now we come to the fun part – deliberations. Based on the evidence and testimony, including many severe discrepancies on the part of the plaintiff that I could not write off as confusion about the question, I was leaning towards the defendant. But then we learned the layman’s definition of “preponderance of evidence”.

Initially, I assumed that in a civil case, like a criminal case, the plaintiff had to show proof beyond a reasonable doubt. However, in a civil case, the plaintiff has a much lower bar – they merely have to show a preponderance of proof. Now that definition is wide open, in my mind. To me, a preponderance would be 80% versus 20%. However, the plaintiff’s attorney offered, and nobody refuted, that a preponderance is merely a 51% versus 40% chance that their version of events probably happened.

Wow. Now my mind and my panties are all twisted! That casts a whole different shadow over things.

The jury went in basically split 50-50. We had three questions, the first being whether or not we believed the battery was defective and unsafe when it left the manufacturer. The second and third (did the battery cause the blaze, and what damages should be awarded) were only pertinent if we answered yes to question number one.

And that is where the vigorous debate began in the deliberation room. And I have to admit that I swung back and forth as I considered both sides of the story. Feeling sorry for the plaintiff and his major loss weighed heavily, and as I said, it would have been very easy to justify letting the big, faceless corporation pay. After all, it would not have hurt their bottom line in the least. Their CEO could have paid for it, as I said, without blinking an eye or even noticing that he was at any loss.

And I guess here is where right ain’t necessarily right. in the end, the plaintiff failed to prove to eight jurors that this one particular battery left the manufacturing facility in a defective state.

I proposed to the jury the following – that even if we all agreed yes, a battery could have been defective; and if we agreed despite conflicting testimony that a battery could self-ignite; and even if we agreed that THIS battery did indeed self-ignite – the plaintiff failed to show a preponderance of evidence.

Why? The battery left Johnson Controls manufacturing facility, probably in a semi-truck. It traveled how many thousands of miles to a Walmart warehouse, before then being shipped to a Sam’s Club in Cumberland County. It was handled by the very competent (I am sure) stocking crew at Sam’s Club, personnel that likely earn a whopping $7.50 an hour and get no real benefits, and probably aren’t allowed to work full 40-hours weeks before being purchased by a teenager and his mother where it was probably put into the truck of their car and driven to his house, and then moved to another vehicle and driven to a barn and installed in the vehicle by people that were handy with tools but not professional mechanics. It sat in that vehicle for several months before that vehicle was towed to the shop because the car wouldn’t start, would start and run but not keep running, would barely turn over depending on which testimony you believed.

So – I do some math in my head to try to push the advantage to the plaintiff, 51% – 49% and could not make that math work. If I accepted that the battery could have self-ignited, that is 50/50. Now I need evidence that it was defective – and if I believed the battery was indeed defective and self ignited, BINGO – find for the plaintiff! But even if we agree on all of the above – where did the battery become defective or unsafe? Was it in the factory do to a manufacturing oversight? But it was also in a semi trailer, in possibly intense heat for how long? And how was it handled at Sam’s Club – did an employee or another customer possibly drop it when it was on the display shelf enough to damage the plates? Did it tip over in the trunk of the customer’s car when they turned a corner too sharply or stopped too abruptly? So even assuming a defect and self-ignition, leaving me at 50/50, these other questions also left me with a 50% possibility on top of the other 50%, or only 25% probability at best that any plausible or possible defect occurred in the factory.

And my brain is still in a twist. The verdict wasn’t easy, and the process of serving on a jury was certainly educational. At least I won’t have to worry about it again for another three years. Maybe by then, Cumberland County will have their parking situation straightened out!