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Defense Digest

Even When You Think You Have The Perfect Jury, You Can Still Be Surprised

Defense Digest, Vol. 32, No. 3, September 2026

September 30, 2026

by Taylor E. Kosko

Key Points:
• Jury selection matters, but it is not predictive. Even an attentive and seemingly favorable jury can return an unexpected or internally inconsistent verdict, particularly in complex cases.
• Verdict slips deserve careful attention. The structure and wording of a verdict slip can significantly affect the outcome of a case. Clear verdict sheets can be just as important as the evidence presented at trial.
• Expect the unexpected. Even the most carefully selected jury can return a surprising verdict. It is a reminder that while jury selection is essential, no panel is ever completely predictable.

A recent Pittsburgh trial serves as a stark reminder that even when jury selection has resulted in a seemingly favorable panel, a jury can still deliver an unexpected result. While careful jury selection remains crucial to proper trial preparation, no amount of voir dire completely eliminates the possibility of inconsistent or unpredictable verdicts.

In 2023, a lawsuit was filed by Michaeleen Lee in the Court of Common Pleas of Allegheny County against numerous defendants, including Johnson & Johnson, alleging that she developed mesothelioma as a result of her exposure to talcum powder products. The case proceeded to trial in late 2025, continued by her estate after Ms. Lee passed away from her mesothelioma prior to trial.

Following a one-and-a-half-month long trial, the jury rendered its verdict. The jury found Johnson & Johnson negligent, but did not find that Johnson & Johnson’s negligence was a factual cause of Ms. Lee’s diagnosis. The jury then shockingly attempted to award $22 million in punitive damages to Ms. Lee’s estate.

How could a jury award millions of dollars in punitive damages against Johnson & Johnson despite failing to find causation? Looking back, the wording and format of the verdict slip laid the groundwork for juror confusion, and provides a cautionary example of why the selection of a favorable jury may not be enough to ensure success at trial. In its deliberation, the jury found Johnson & Johnson negligent, but did not find that the negligence caused Ms. Lee’s mesothelioma. Further, the jury found that Ms. Lee relied to her detriment upon statements of material fact made by Johnson & Johnson that allegedly concealed or omitted material information about the safety of the product at issue, but did not find that her reliance on those statements caused her mesothelioma. Finally, the jury found that Ms. Lee relied to her detriment on statements or conduct of material fact, intentionally or negligently made by Johnson & Johnson, which misrepresented the safety of the product at issue, but again did not find that her reliance on such statements or conduct of material fact caused her mesothelioma. 

The verdict slip required the jurors to answer “yes” to having found that Johnson & Johnson’s negligence, statements of material fact, and/or misrepresentations were a factual cause of Ms. Lee’s mesothelioma diagnosis before they could award punitive damages. The jurors did not do so. Despite not finding causation, the jury still attempted to award Ms. Lee’s estate $22 million in punitive damages.

Ultimately, the trial court molded the verdict, finding for Johnson & Johnson and awarding Ms. Lee’s estate no punitive damages. 

The decision to mold the verdict found itself before the Superior Court of Pennsylvania, which just recently issued a non-precedential opinion, affirming the trial court's decision. Because the jury clearly found that Johnson & Johnson's conduct was not a factual cause of Ms. Lee's injuries, the punitive damages award could not stand as a matter of Pennsylvania law.

Although the appellate decision focused on correcting a seemingly inconsistent verdict, the case offers a valuable lesson for trial lawyers. Jury selection is critical, but but relying upon the selection of a seemingly favorable jury is insufficient to guarantee success at trial. Even a carefully selected panel may struggle with complex verdict slips, nuanced legal standards such as causation, or the distinction between disapproving of a defendant's conduct and finding that conduct legally caused a plaintiff's injury. Cases involving multiple claims and multiple defendants only increase the likelihood that jurors may reach conclusions that appear difficult to reconcile. For trial counsel, this underscores the importance of not only selecting a thoughtful jury, but also presenting a clear narrative, simplifying complex legal concepts whenever possible, and paying close attention to the structure and wording of the verdict sheet.

Taylor is an Associate in our Pittsburgh, PA office. She can be reached at 412-803-2440 or TEKosko@mdwcg.com.

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