Resources

1. EXPERIENCE WITH KRATOM

A juror questionnaire is essential to uncover sensitive information that jurors may hesitate to share openly during voir dire.

Key areas to explore include:

• Personal or familial experience with kratom, addiction, or other drugs.
• Professional or medical training that may influence their perspective on drug manufacturers or product safety.
• Advocacy or involvement with kratom, such as selling or using the product.

Privacy is critical when addressing these topics, as jurors are more likely to provide honest answers in a written questionnaire than in open court. This tool can help both sides identify and exclude jurors whose biases may harm their case.

2. JUROR CHARACTERICS TO AVOID FOR PLAINTIFF

Jurors’ attitudes toward fault and responsibility in pharmaceutical product liability cases vary widely.

Plaintiffs should be wary of jurors who:

• Believe individuals are solely responsible for their health and the substances they consume. These jurors often view plaintiffs who use unregulated products as assuming the risks.
• Exhibit a strong sense of personal responsibility, such as business owners, landlords, or managers. These individuals may sympathize with defendants, fearing lawsuits themselves.
• Express skepticism toward lawsuits, particularly those seeking monetary damages. These jurors often have difficulty understanding why the other party should take the blame for their own choices.

To identify these jurors, consider asking:

• How do you spend your free time? What clubs or organizations are you a member of? For example, Religion is something to listen for and assess. How often do they attend church? Does their religion affect their ability to listen to the evidence and render a verdict? Some jurors believe whatever happens is God’s will. The same applies to political learning. Do they volunteer at the polls? Are they members of an organization such as the National Rifle Association? American Civil Liberties Union? While both represent someone whose constitutional rights are important to them, they are manifested in different ways.
• What is your occupation? Jobs requiring high levels of accountability (e.g., HR professionals, business owners) may indicate a pro-defense bias.
• What do they think about lawsuits and plaintiffs that sue for money damages? Have they been a plaintiff or defendant in a lawsuit? Getting a sense of their experience and tolerance with litigation will be important to remove any extreme perspectives that do not believe in lawsuits.
• Do you trust your doctor? Jurors who defer to medical authority may question plaintiffs who self-treat with unapproved remedies.
• Do you read manuals or contracts carefully? Detail-oriented jurors may blame plaintiffs for not researching kratom’s risks.

3. JUROR CHARACTERISTICS TO AVOID FOR DEFENSE

Defendants should avoid jurors who:

• Conspiracy theorists and/or those who distrust government and corporations. These individuals often believe that regulatory agencies protect pharmaceutical profits at the expense of consumers.
• Engage in high-risk activities (e.g., skydiving, motorcycle riding), aka adrenaline junkies. They are, by nature, less risk-averse and may be more tolerant of using unapproved supplements.
• Lack job stability. These jurors may sympathize with plaintiffs and hold businesses accountable for perceived injustices.
• Have complex or chronic health issues, particularly if they seem disconnected from managing their own health. These individuals more easily sympathize with plaintiffs who use unapproved products or share similar experiences with poor health.

To identify these jurors, consider asking:

• Should manufacturers make products 100% safe? This reveals their expectations of corporate responsibility.
• Who is more responsible for safety: the user or the manufacturer? Plaintiff-leaning jurors often believe manufacturers have the resources and expertise to ensure safety.
• Do you believe manufacturers test their products? Skepticism about testing practices can indicate a pro-plaintiff bias.

4. GENERAL STRATEGIES FOR JURY SELECTION

• Identify extreme views: Use voir dire to uncover jurors with strong biases that could skew deliberations.
• Focus on attitudes, not demographics: While demographics can provide clues, attitudes toward personal responsibility, authority, and corporate accountability are more predictive of verdicts.
• Leverage juror questionnaires: Written questionnaires allow jurors to disclose sensitive information privately, providing a clearer picture of their suitability.

Jury selection is a critical phase of kratom litigation, as preexisting juror attitudes can significantly influence outcomes. By identifying and excluding jurors with extreme views, both plaintiffs and defendants can increase the likelihood of a fair, evidence-based verdict. Consulting with a trial consultant to tailor these strategies to your specific venue and case facts is highly recommended.

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The User of the Product

Jurors rigorously scrutinize a plaintiff’s credibility and choices. While some may question why a plaintiff used kratom, it is often sought as an alternative treatment. However, jurors tend to be skeptical of self-medication with an FDA-unapproved product.

Key questions jurors consider:

• Did the plaintiff pursue safer alternatives (e.g., medical care, physical therapy) before turning to kratom?
• Was the plaintiff’s age or education level a factor in their ability to assess risks?
• Was kratom used to replace another addiction?
• Did the plaintiff have preexisting health conditions?

Understanding how jurors judge alternative medicine use is critical for developing case strategy.

The Suppliers and Manufacturers

Jurors demand transparency in product safety, particularly in the kratom industry where supply chains are often obscured. The kratom industry has expanded significantly, using multiple layers of LLCs and mislabeling shipments to pass customs.

Key concerns for jurors:

• Who is the supplier and manufacturer? Jurors dislike companies that hide their identities through shell corporations.
• How is the product tested for safety? The FDA has issued alerts allowing inspectors to confiscate kratom products, yet many suppliers sidestep regulations by mislabeling shipments.

Jurors will closely examine whether manufacturers tested products for bacteria, heavy metals, purity, and alkaloid content before selling them in the U.S.

Warnings and Labels

Kratom is sold in various forms—energy shots, pills, and tea—at gas stations, vape shops, and online. However, labeling is often unclear, leading users to seek guidance from alternative sources like online forums and books.

Jurors’ attitudes toward warning labels vary:

• Some take a literal approach, scrutinizing labels word for word.
• Others rely on common sense or general knowledge.

Regardless of interpretation, product labeling—especially misleading claims—will be a key issue in litigation.

Strategic Takeaways for Kratom Litigation

• Anticipate juror biases: If a plaintiff lacks credibility, focus on the manufacturer’s failures in ensuring product safety.
• The jury will hold someone accountable: Defendants using shell corporations to evade liability should be prepared to justify their business practices.
• Warning and Labels: Voir dire strategies should identify jurors with favorable views on warning labels.

By applying pharmaceutical liability frameworks to kratom cases, attorneys can proactively shape juror expectations and minimize surprises during trial.

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Understanding Juror Reactions in Kratom Lawsuits

This article is the first in a three-part series and examines the first kratom case to result in a jury verdict: Sybil Coyne v. Wendianne Rook and Jeff Rook; Society Botanicals, LLC, et al.

The Case Overview

Kratom, a tropical tree native to Southeast Asia, has leaves that are crushed and consumed for their psychoactive effects. Its primary alkaloids, mitragynine and 7-hydroxymitragynine, bind to opioid receptors in the brain, producing effects similar to opioids: analgesia, euphoria, and sedation.

In July 2023, a jury awarded $2.5 million to the plaintiff in the Coyne case. The fact pattern revealed the story of Patrick Coyne, a boat mechanic and father of three, who was found dead at home in his recliner after using kratom multiple times daily to manage chronic back pain. The judge and jury concluded that inadequate warnings, labeling, and instructions directly caused his death and that the defendant's actions were extreme enough to have violated consumer protection laws.

The Jury’s Message: Accountability Over Sympathy

Large verdicts are not driven by sympathy; they are statements of accountability. Sybil Coyne received $1.1 million in economic damages and $1.4 million in non-economic damages—a staggering sum in Cowlitz County, where the median income is $36,000. The jury's message was clear: corporate negligence with life-or-death consequences will not be tolerated. The special verdict form confirmed the defendant’s failure to ensure product safety, directly linking these oversights to Patrick's death.

The Role of Deceptive Marketing

What fueled this outcome? The complaint revealed that defendant Wendi Rook promoted kratom through a free eBook titled "KRATOM: A COMPREHENSIVE GUIDE TO UNDERSTANDING THE EFFECTS AND BENEFITS OF THIS AMAZING PLANT," which downplayed risks. For example, she made statements such as:

"If the quantity consumed is too much for the body to handle, the kratom will let you know by causing nausea or vomiting. You may have heard some highly biased stories in the media of how kratom caused someone’s untimely death. However, what the media doesn’t reveal in these stories is the list of other potentially lethal substances found in the dead person’s blood. Keep in mind that there is no scientifically confirmed recorded fact of kratom ever causing a single death, so no need to be nervous about trying it."

The court reinforced this narrative. In a pretrial summary judgment, the judge ruled the product’s warnings and instructions inadequate. Jurors later found Society Botanicals guilty of deceptive practices under the Consumer Protection Act—a predictable outcome given the eBook’s misleading claims.

Juror Psychology: Why Betrayal Matters

Jurors do not like deceit. Written materials like Rook’s eBook become focal points in deliberations, offering tangible proof of dishonesty. While testimony and scientific evidence can overwhelm jurors, written lies are indelible. They erode defendant credibility and shape verdicts.

Betrayal also resonates deeply. Here, the defendant’s denial of kratom’s risks betrayed the community’s trust. Jurors—many familiar with betrayal in their own lives—saw parallels in the company’s disregard for safety. The family, customers, and community were betrayed.

Not all kratom cases will involve betrayal, but anticipating how jurors interpret and evaluate the facts in your case prior to trial is critical to mitigating damages or recovering damages for your client.

This is the first article in a three-part series. Stay tuned for the next installment, which will examine the three pillars of fault in kratom litigation.

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In this installment of the series on managing Dismissive and Bully attorneys, we describe additional actions that do not work or that contribute to dysfunctional relationships with opposing attorneys. It is drawn from interviews with more than 40 attorneys.

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This is the fourth part of the series, and here we discuss actions based on interviews with 40 attorneys that have proven not to work in dealing with dismissive or bully opposing counsel and, in fact, contribute to fueling discord and frustration.

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In this third part of the series, we describe additional techniques and tools, based on interviews with forty attorneys, which have proven effective in managing dismissive and bully opposing counsel.

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In the first part of this series, we helped identified common traits associated with difficult opposing counsel. In this part we introduce effective tools to deal with such counsel, based on interviews with forty attorneys.

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It is the personality component that can lead to the same dysfunctional relationship between the attorneys that the parties experience with each other. This is the first in a series entitled Managing Dismissive and Bully Attorneys. The series explores these sometimes explosive relationships and provides effective tools for attorneys to manage the most difficult and possibly high conflict personality opposing attorney.

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Mock trials are a valuable tool for attorneys to test their case strategies and gain insights into how a jury might react to their arguments. By simulating a real trial, attorneys can identify strengths and weaknesses in their case, refine their arguments, and develop more effective trial strategies.

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It can certainly be difficult to assess how someone thinks and how they will relate to other jurors, particularly in the typically frenetic voir dire settings. However, clinical psychology can provide attorneys helpful guidance in making quick, insightful voir dire juror assessments even where no factual bias is uncovered.

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