Huskey v. Ethic On, Inc.
| Decision Date | 19 August 2015 |
| Docket Number | CIVIL ACTION NO. 2:12-cv-05201 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | JO HUSKEY, et al., Plaintiffs, v. ETHIC ON, INC., et al., Defendants. |
Pending before this court is Defendants Ethicon, Inc. & Johnson & Johnson's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial ("Motion") [Docket 437]. The plaintiffs have responded [Docket 439], making the matter ripe for decision. For the reasons stated below, the Motion is DENIED.
This case was the first bellwether jury trial within the Ethicon, Inc. MDL, MDL 2327. At present, the Ethicon, Inc. MDL is the largest MDL in the country, containing over 26,000 individual cases. The Judicial Panel on Multidistrict Litigation assigned the Ethicon, Inc. MDL to this court, along with six other MDLs concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse ("POP") and stress urinary incontinence ("SUI"). More than 70,000 cases are currently pending in the MDLs. Jo and Allen Huskey ("the plaintiffs") filed this particular action against Ethicon, Inc. and Johnson & Johnson (collectively, "Ethicon"), alleging injuriesassociated with implantation of the TVT Obturator System ("TVT-O"), a polypropylene-based, transvaginal mesh product manufactured by Ethicon to treat SUI.
Mrs. Huskey's implantation surgery was performed by Dr. Gretchen Byrkit on February 23, 2011. (Statement of Undisputed Facts Regarding Jo Huskey's Medical History & Condition [Docket 215] ¶ 25). At a post-operative visit on March 9, 2011, Dr. Byrkit examined Mrs. Huskey and noticed eroded mesh on the right side of the vagina. (Id. ¶ 27). The erosion persisted over the next few months and caused Mrs. Huskey to experience painful sexual intercourse. (Id. ¶ 28). When revision surgery did not resolve the mesh erosion, Dr. Byrkit referred Mrs. Huskey to Dr. Sohail Siddique, who had specific experience with mesh erosion. (Id. ¶¶ 28-29).
Dr. Siddique met with Mrs. Huskey on August 29, 2011. (Id. ¶ 30). Mrs. Huskey complained of pelvic pain and dyspareunia (pain with sexual intercourse). (Id.). After examining Mrs. Huskey, Dr. Siddique observed the exposed mesh and recommended excision, though he noted that due to the placement of the mesh in the obturator space, he could not remove it all. (Id. ¶¶ 30-31). Dr. Siddique performed the excision surgery on November 18, 2011. (Id. ¶ 33). He ultimately removed six centimeters of mesh from what he described as a "chronically infected space" and left the portions that were retracted around the pubic bone. (Id.). Mrs. Huskey's pain returned after the excision surgery, and steroid injections, though successful at first, have provided minimal relief. (Id. ¶ 36).
Since removal of the sling, Mrs. Huskey continues to have constant pelvic and vaginal pain that is exacerbated by physical activity. (Id. ¶ 41). She has also experienced recurrence of SUI, pain in her bladder, dyspareunia, and sacroiliac joint pain. (Id. ¶¶ 39-41). Attributing these injuries to the TVT-O, Mrs. Huskey and her husband filed suit against Ethicon on September 6, 2012. . Trial began on August 25, 2014. After nine days oftrial, the plaintiffs ultimately presented four claims to the jury: strict liability for defective design; strict liability for failure to warn; negligence; and loss of consortium. (See Verdict Form [Docket 402]).1 The jury returned a verdict in favor of the plaintiffs on all claims. In so doing, the jury awarded $3,070,000 in compensatory damages to Mrs. Huskey, in addition to $200,000 to Mr. Huskey for loss of consortium. (Id.).
At the conclusion of the plaintiffs' case, Ethicon orally moved for judgment as a matter of law on each claim pursuant to Federal Rule of Civil Procedure 50(a). (Trial Tr. (Aug. 29, 2014) [Docket 388], at 94:15-18). I granted the motion in part with respect to the issue of punitive damages and deferred ruling on the remaining claims. (Id. at 114:18-115:3). Then, at the close of its case, Ethicon renewed its Rule 50(a) motion for judgment as a matter of law, and I again deferred ruling. (Trial Tr. (Sept. 4, 2014) [Docket 428], at 78:24-25). I now consider Ethicon's post-verdict renewed motion for judgment as a matter of law pursuant to Rule 50(b), along with its alternative motion for a new trial under Rule 59(a)(1)(A).2
Pursuant to Federal Rule of Civil Procedure 50(a), a court may grant judgment as a matter of law "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a). When considering a party's motion for judgment as a matter of law, the court must "view the evidence in the light most favorable" to the non-moving party and "drawall reasonable inferences in his favor without weighing the evidence or assessing the witnesses' credibility." Baynard v. Malone, 268 F.3d 228, 234-35 (4th Cir. 2001). Judgment as a matter of law is inappropriate if a reasonable jury could find in favor of the non-moving party. Id. at 235. On the other hand, a court may grant judgment as a matter of law if the "evidence presented supports only one reasonable conclusion as to the verdict." Bank of Montreal v. Signet Bank, 193 F.3d 818, 831 (4th Cir. 1999).
Rule 50 also states that "[i]f the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(b). After the matter is submitted to the jury, the Rules allow a movant to file a renewed motion for judgment as a matter of law. Id. "When a jury verdict has been returned, judgment as a matter of law may be granted only if, viewing the evidence in a light most favorable to the non-moving party (and in support of the jury's verdict) and drawing every legitimate inference in that party's favor, the only conclusion a reasonable jury could have reached is one in favor of the moving party." Int'l Ground Transp. v. Mayor & City Council of Ocean City, Md., 475 F.3d 214, 218-19 (4th Cir. 2007).
While courts should not simply rubber stamp a jury's verdict, judgment as a matter of law is a remedy to be applied sparingly and only in the most extraordinary circumstances. 9B Charles Wright & Arthur Miller, Federal Practice and Procedure § 2524 (3d ed. 2008); see also, e.g., Sawyer v. Asbury, 861 F. Supp. 2d 737, 743-44 (S.D. W. Va. 2012) (). Put simply, a court "may not disturb the [jury] verdict where there was sufficient evidence for a reasonable jury to find in the non-movant's favor." Dotson v. Pfizer, Inc., 558 F.3d 284, 292 (4th Cir. 2009).
I decline to disturb the jury's verdict in this case because, as explained below, a reasonable jury could find in favor of the plaintiffs on each of their claims. The evidence on the defective design claim is particularly strong and is capable of upholding the verdict on its own. Thus, I begin there before turning to Ethicon's Motion regarding the plaintiffs' other theories of liability.
Illinois requires a plaintiff to prove five factors to succeed on a strict liability claim under a theory of design defect: "(1) a condition of the product as a result of [] design, (2) that made the product unreasonably dangerous, (3) and that existed at the time the product left the defendant's control, and (4) an injury to the plaintiff, (5) that was proximately caused by the condition." Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008), opinion modified on denial of reh'g (Dec. 18, 2008). The second element, that the condition made the product "unreasonably dangerous," can be proven through either the consumer-expectations test or the risk-utility test. Id. at 351-52. The consumer-expectations test "is a single-factor test" that asks the jury to determine "whether the product is unsafe when put to a use that is reasonably foreseeable considering its nature and function." Id. at 352. In contrast, the risk-utility test is a "multifactor analysis" that integrates consumer expectations along with "a broad range" of other factors, such as the "magnitude and probability of the foreseeable risks of harm[;] the instructions and warnings accompanying the product[;] the likely effects of an alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products." Id. ().
Which of these two tests should be charged to the jury depends on the evidence presented by the parties at trial:
[W]hen the evidence presented by either or both parties supports the application of this integrated [risk-utility] test, an appropriate instruction is to be given at the request of either party. If, however, both parties' theories of the case are framed entirely in terms of consumer expectations, including those based on advertising and marketing messages, and/or whether the product was being put to a reasonably foreseeable use at the time of the injury, the jury should be instructed only on the consumer-expectation test.
Id. Here, the parties presented evidence pertinent to both the consumer-expectations test and the risk-utility test. Therefore, I instructed the jury in accordance with the integrated test set forth in the Illinois Pattern Civil Jury Instructions, which provide as follows: "When I use the expression 'unreasonably dangerous,' I mean that...
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