Bayes v. Biomet, Inc.

• Decision Date: 14 December 2022
• Docket Number: 21-2964
• Citation: 55 F.4th 643
• Parties: Mary BAYES; Philip Bayes, Plaintiffs - Appellees v. BIOMET, INC.; Biomet Orthopedics, LLC ; Biomet U.S. Reconstruction, LLC; Biomet Manufacturing LLC, formerly known as Biomet Manufacturing Corp., Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

55 F.4th 643

Mary BAYES; Philip Bayes, Plaintiffs - Appellees

v.BIOMET, INC.; Biomet Orthopedics, LLC ; Biomet U.S. Reconstruction, LLC; Biomet Manufacturing LLC, formerly known as Biomet Manufacturing Corp., Defendants - Appellants

No. 21-2964

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2022

Filed: December 14, 2022

Counsel who presented argument on behalf of the appellant was Aaron Daniel Van Oort, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Bruce Gregory Jones, of Minneapolis, MN., John P. Mandler, of Minneapolis, MN., Stephanie Anne Koltookian, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Joseph Yeckel, of Saint Louis, MO. The following attorneys also appeared on the appellee brief; Michael Gross, of Saint Louis, MO., Darin L. Schanker, of Denver, CO., James D. O'Leary, of Saint Louis, MO., John Christopher Elliott, of Denver, CO., Michael J. Quillin, of Saint Louis, MO., Jessica A. Perez, of Plaquemine, LA., Melanie R. Sulkin, of Denver, CO., Zachary Wool, of New Orleans, LA.

Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.

SMITH, Chief Judge.

Mary and Philip Bayes sued Biomet, Inc. and associated entities (Biomet) after Mary Bayes's M2a Magnum hip implant

failed. The M2a Magnum is a large diameter metal-on-metal hip implant produced by Biomet. Mary argued that the implant caused irreparable damage to her hip joint and surrounding tissues. A jury awarded Mary $20 million in damages. The jury awarded an additional $1 million in damages to her husband Philip for his loss of consortium. Biomet appeals, arguing that (1) the jury's verdict was inconsistent, (2) the Bayes failed to establish the required standard of care, (3) the Bayes failed to show a breach by Biomet, and (4) the damages award was excessive. We disagree and affirm the judgment of the district court.¹

I. Background

Mary Bayes has long suffered from arthritis

. A surgeon using the Biomet M2a Magnum replaced her right hip joint in January 2008 and her left hip joint in April 2008. The M2a Magnum completely replaces the hip joint using an alloy of metals, including cobalt and chromium for both the ball and the cup of the implant.

In 2010, Mary began experiencing increasing pain in her left hip. X-rays showed significant bone degeneration in her left hip. Consequently, she underwent corrective surgery by a new surgeon that replaced the M2a Magnum with a ceramic-on-plastic hip implant

in March 2011. The new surgeon, upon opening the hip joint, observed severe damage to the joint and surrounding tissue. Metal ions had permeated the nearby soft tissues, causing severe necrosis. Since this revision surgery, Mary has suffered 12 dislocations of her left hip. Doctors have performed seven hip revision surgeries on her. Mary now uses a fully constrained hip replacement, preventing normal hip function such as sitting in a typical posture. Mary's doctors state that continued hip dislocations are highly likely. As a result, she must markedly limit her life activities to avoid dislocations.

Mary sued Biomet in May 2013. Mary alleged that Biomet negligently designed the M2a Magnum and was strictly liable for its design, manufacture, and distribution. The jury trial began October 5, 2020, and lasted 13 days. The court gave two instructions regarding liability. Jury Instruction No. 10 detailed the proof requirements for "strict liability—product defect." R. Doc. 362, at 11. These requirements included that "[t]he M2a Magnum was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use" and that "the M2a Magnum was used in a manner reasonably anticipated." Id. Jury Instruction No. 11 stated the negligence requirements, including that "the M2a Magnum was in a defective condition unreasonably dangerous" and "Biomet failed to use ordinary care to design the M2a Magnum to be reasonably safe." Id. at 12. At the conclusion of the evidence, Biomet requested a judgment as a matter of law. The district court denied this motion, concluding that sufficient evidence of causation had been adduced. The jury found for Biomet on the strict liability claim but for Mary on the negligence claim, awarding her $20 million.

Biomet then renewed its motion for judgment as a matter of law. Biomet requested a verdict in its favor, arguing that the jury's negligence verdict for Mary was logically inconsistent with and thus irreconcilable with its strict liability verdict in Biomet's favor. In the alternative, Biomet requested a new trial or remittitur on damages. The court denied its motions. The court stated that the verdicts were not contradictory and that Mary put forward sufficient evidence of breach, causation, and damages. Biomet timely filed notice of this appeal.

II. Discussion

On appeal, Biomet argues that (1) the verdicts were inconsistent and require a new trial or directed judgment for Biomet, (2) the plaintiffs failed to establish the required standard of care for Biomet, (3) the plaintiffs failed to establish a breach by Biomet, and (4) the damages were excessive and require remittitur or a new trial.

A. Inconsistent Verdicts

Mary presented strict liability product-defect and negligent design claims to the jury. Before submitting the case to the jury, the court instructed it on each claim in Jury Instructions No. 10 and No. 11 respectively.

INSTRUCTION NO. 10.

On Plaintiffs’ claim for strict liability-product defect, your verdict must be for Mrs. Bayes if you believe:

1. Biomet sold the M2a Magnum in the course of its business, and

2. the M2a Magnum was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and

3. the M2a Magnum was used in a manner reasonably anticipated, and

4. Such defective condition, as existed when the M2a Magnum was sold, directly caused or directly contributed to cause damage to Mrs. Bayes.

INSTRUCTION NO. 11

On Plaintiffs’ claim for negligence, your verdict must be for Mrs. Bayes if you believe:

1. Biomet designed the M2a Magnum, and

2. the M2a Magnum was in a defective condition unreasonably dangerous, and

3. Biomet failed to use ordinary care to design the M2a Magnum to be reasonably safe, and

4. such failure directly caused or directly contributed to cause Mrs. Bayes to sustain damage.

The phrase "ordinary care" as used in this instruction means that degree of care that an ordinarily careful person would use under the same or similar circumstances.

R. Doc. 362, at 11–12.

Following its deliberations, the jury returned a verdict for Biomet on the strict liability product-defect claim and for Mary on the negligent design claim. Following the return of the verdict, Biomet argued that the verdict was inconsistent and moved for a new trial or altered judgment. The district court denied the motion, and Biomet appeals the district court's denial of its requested post-trial relief.

Whether a jury verdict is irreconcilably inconsistent is a question of law that we review de novo. SEC v. Quan , 817 F.3d 583, 589 (8th Cir. 2016). We will conclude that the district court should have granted a new trial "only if there was ‘no principled basis upon which to reconcile the jury's inconsistent findings.’ " Top of Iowa Co-op. v. Schewe , 324 F.3d 627, 633 (8th Cir. 2003) (quoting Bird v. John Chezik Homerun, Inc. , 152 F.3d 1014, 1017 (8th Cir. 1998) ).

The jury's verdict was not contradictory on its face. The strict-liability claim was defined in Jury Instruction No. 10. The instruction told the jury that two of the elements of strict liability require proof of reasonably anticipated use. Paragraph two required that the M2a Magnum be defective when "put to a reasonably anticipated use." R. Doc. 362, at 11. Paragraph three required that the M2a Magnum be "used in a manner reasonably anticipated." Id. Jury Instruction No. 11, which addressed negligence, differed. It contained no requirement that the jury find proof of a reasonably anticipated use.

Biomet does not dispute the differing proof elements in the two instructions. Rather, it urges the court to conclude that the element of strict liability requiring proof of reasonably anticipated use was undisputed and thus functionally stipulated. Biomet points to the closing arguments. In closing, Mary's counsel argued, "The M2a Magnum was used in a manner reasonably anticipated. Well, this is an easy one." R. Doc. 357, at 112:9–11. In its closing, Biomet omitted discussion of the element of reasonably anticipated use. The absence of contrary argument by Biomet did not create a constructive stipulation obviating the necessity of a jury finding of an element of Mary's claim. An assertion of a disputed stipulation requires record evidence of the stipulation. See Gander v. Livoti , 250 F.3d 606, 610 (8th Cir. 2001) ("There might have been some tacit agreement at the status conference, but there is no record of what the parties stipulated to in terms of the facts of this case. Consequently, we find that there exists no stipulation that would be binding ....").

Without a stipulation, the presence of an essential element of a claim remained for the fact finder. At trial, Biomet's strategy focused on potential medical misuse of the device. It adduced evidence that the surgeon installed Mary's M2a Magnum implant outside of the angle recommended by accepted guidelines. Dr. Steven Kurtz, an expert witness for Biomet, testified that the implantation angle of Mary's left hip implant

was not in a "biomechanically optimal position." R. Doc. 345, at 60: 17–20. Dr. Thomas Fleeter, another Biomet expert witness, testified that the angle of Mary's left hip implant was "beyond what was recommended, and that lead to metal-on-metal wear and metallosis and many of the problems that she has experienced." R. Doc. 353, at 116: 2–4.

Biomet attempted to persuade the jury that the implant was used beyond what was reasonably anticipated. A reasonable jury could have agreed. The jury may...