Kaiser v. Johnson & Johnson & Ethicon, Inc., 2:17-cv-00114-PPS-JEM

• Decision Date: 08 August 2018
• Docket Number: No. 2:17-cv-00114-PPS-JEM,2:17-cv-00114-PPS-JEM
• Parties: Barbara KAISER and Anton Kaiser, Plaintiffs, v. JOHNSON & JOHNSON and Ethicon, Inc., Defendants.
• Court: U.S. District Court — Northern District of Indiana

334 F.Supp.3d 923

Barbara KAISER and Anton Kaiser, Plaintiffs,

v.JOHNSON & JOHNSON and Ethicon, Inc., Defendants.

No. 2:17-cv-00114-PPS-JEM

United States District Court, N.D. Indiana, Hammond Division.

Signed August 8, 2018

Andrew N. Faes, PHV, Jeffrey M. Kuntz, PHV, Thomas P. Cartmell, PHV, Wagstaff & Cartmell LLP, Kansas City, MO, Edward A. Wallace, PHV, Tania E. Yusaf, PHV, Timothy E. Jackson, PHV, Wexler Wallace LLP, Thomas O. Plouff, Costello McMahon Burke & Murphy Ltd, Chicago, IL, for Plaintiffs.

Amy M. Pepke, PHV, Butler Snow LLP, Memphis, TN, Daniel R. Higginbotham, PHV, Philip J. Combs, PHV, Thomas Combs & Spann PLLC, Charleston, WV, Jennifer L. Steinmetz, PHV, Rita A. Maimbourg, PHV, Tucker Ellis LLP, Cleveland, OH, Jordan N. Walker, PHV, William M. Gage, PHV, Butler Snow LLP, Ridgeland, MS, Kathleen A. Gallagher, PHV, Beck Redden LLP, Houston, TX, Mary Nold Larimore, Nancy Menard Riddle, Ice Miller LLP, Indianapolis, IN, for Defendants.

OPINION AND ORDER

PHILIP P. SIMON, JUDGE

This is a products liability case where Barbara Kaiser claimed to have been substantially and permanently injured by a mesh product that was implanted in her vagina to treat her pelvic organ prolapse. The mesh product was designed and manufactured by defendants Johnson & Johnson and Ethicon, Inc. After a two week trial, the jury agreed with Mrs. Kaiser and found in her favor on her failure to warn and design defect claims. The jury awarded Mrs. Kaiser $10 million in compensatory damages and $25 million in punitive damages. The jury found in the defendants' favor on the claim of loss of consortium brought by Anton Kaiser, Mrs. Kaiser's husband.

Defendants have filed a motion contesting the verdict, seeking judgment as a matter of law on both the failure to warn and design defect claims, or in the alternative a new trial, or in the alternative to that, a remittitur of the jury's damages award. [DE 416.] Because there was sufficient evidence for a reasonable jury to find in favor of Mrs. Kaiser, I will deny defendants' motion for a judgment as matter of law and likewise deny defendants' motion for a new trial. Similarly, because I find the jury's compensatory damages award was neither monstrously excessive nor the product of passion or prejudice, I will deny Ethicon's request for a remittitur of the jury's compensatory damages award.

The jury's punitive damage award, however, is another story. I find the punitive damages award excessive and unreasonable under controlling law. As such, I will grant defendants' motion for remittitur of the jury's $25 million punitive damage award.

Background

Defendants Ethicon and Johnson & Johnson are corporations which, among other lines of business, design, market, and sell medical devices. Ethicon is a wholly owned subsidiary of Johnson & Johnson. For ease of reference I will refer to both defendants as "Ethicon." One of the devices sold by Ethicon was the Prolift Pelvic Floor Repair System. Prolift is a vaginal mesh which was implanted in Mrs. Kaiser's pelvis in January 2009 to treat her pelvic organ prolapse condition. Mrs. Kaiser subsequently experienced various issues including vaginal pain, pelvic pain, pain during intercourse, bladder spasms, and bowel issues. All of these problems associated with the mesh necessitated a second surgical procedure to have the mesh removed from Mrs. Kaiser's vagina, or at least as much of it as could be removed. There was evidence that once the mesh is implanted it becomes very difficult, if not impossible, to have it all removed; it grows into the tissue, hardens and causes substantial pain.

Mrs. Kaiser alleged in her complaint that her injuries were the result of Prolift's defective design and that Ethicon did not adequately warn Mrs. Kaiser's surgeon (Dr. Bales) of the risks associated with Prolift. The case was originally filed in the United States District Court for the Southern District of West Virginia, where a consolidated Multi-District Litigation related to Prolift and other vaginal mesh products is pending. [DE 1.] On March 28, 2017 the case was transferred here because all pretrial proceedings had concluded, and the case was ready for trial. [DE 160.]

A jury trial began on February 26, 2018 and each side put on extensive evidence, including multiple witnesses, both fact and expert, both live and through videotaped deposition testimony. Trial concluded on March 8, 2018 and after several hours of deliberations, the jury returned a verdict in favor of Mrs. Kaiser, awarding her $10 million in compensatory damages and $25 million in punitive damages. [DE 405.] Ethicon timely filed the present motion seeking judgment as a matter of law, or in the alternative a new trial, or in the alternative of that, a remittitur of the jury's damages awards.

Legal Standard

It is important to note at the outset the posture and standard applicable to defendants' motions. Federal Rule of Civil Procedure 50 governs motions for judgments as a matter of law. Defendants are entitled to a judgment as a matter of law only if I find "that a reasonable jury would not have a legally sufficient evidentiary basis to find" in favor of Mrs. Kaisser. Fed. R. Civ. P. 50(a)(1). In making this determination, I do not approach the case with new eyes, examining the evidence and the jury's verdict as though I am the fact finder receiving the evidence for the first time. Instead, I may only disregard the jury's verdict "if no reasonable jury could have found in [Mrs. Kaiser's] favor." Erickson v. Wisc. Dept. of Corrections , 469 F.3d 600, 601, (7th Cir. 2006). "This is obviously a difficult standard to meet." Waite v. Bd. of Trustees of Ill. Cmty. Coll. Dist. No. 508 , 408 F.3d 339, 343 (7th Cir. 2005). What makes it such a daunting standard is that the Supreme Court has instructed that I "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

In considering the present motion for judgment as a matter of law, it is not my role to "re-weigh the evidence presented at trial or make credibility determinations." Black & Decker Inc. v. Robert Bosch Tool Corp. , No. 04 C 7955, 2007 WL 108412, at *1 (N.D. Ill. Jan. 12, 2007) (citation omitted). As the Supreme Court has succinctly put it, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The standard applicable to Ethicon's motion for a new trial is similar but distinct. Federal Rule of Civil Procedure 59(a) governs a motion for a new trial and states that a new trial may be granted "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. Proc. 59(a)(1)(A). The Seventh Circuit has explained, " ‘[a] motion for a new trial should succeed ‘only if the verdict is against the manifest weight of the evidence.’ " ABM Marking, Inc. v. Zanasi Fratelli, S.R.L. , 353 F.3d 541, 545 (7th Cir. 2003) (quoting Lowe v. Consol. Freightways of Del., Inc., 177 F.3d 640, 641 (7th Cir. 1999) ); Latino v. Kaizer , 58 F.3d 310, 315 (7th Cir. 1995) ("[N]ew trials granted because the verdict is against the weight of the evidence are proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience."). Defendants "must demonstrate that no rational jury could have rendered a verdict against them." King v. Harrington , 447 F.3d 531, 534 (7th Cir. 2006) (citation omitted).

Once again, in making this determination, I "must view the evidence in a light most favorable to [Mrs. Kaiser], leaving issues of credibility and weight of evidence to the jury." Id. "[I]t is an invasion of the jury's province to grant a new trial merely because the evidence was sharply in conflict." Latino , 58 F.3d at 315. "Even when evidence is contradictory, ‘[i]t's the jury's job—not the district court's job or the job of a panel of appellate judges—to figure out who's telling the truth.’ " United States v. Hassebrock, 663 F.3d 906, 920 (7th Cir. 2011) (citation omitted).

Discussion

This was a close case with conflicting expert testimony. On the one hand, it is certainly true that defendants put forth evidence which supported their theory of the case: that Prolift was a safe product, that all necessary warnings were fully disclosed to the necessary individuals, and that Mrs. Kaiser's injuries could not be traced to any harm caused by the vaginal mesh. But it is equally clear the jury did not believe or find defendants' evidence persuasive enough to render a verdict in their favor. On the contrary, the jury obviously believed Mrs. Kaiser and the witnesses who testified that Prolift was a defective product, that Ethicon knew of the risks associated with Prolift but chose not to disclose them to surgeons using the product, and that Mrs. Kaiser's injuries were the result of her having Prolift surgically implanted in her. Given the substantial evidence on both sides of the ledger, it was up to the jury to decide whose story was more believable. With these general thoughts in mind, I will now turn to the various motions brought by Ethicon.

A. Judgment as a Matter of Law as to Failure to Warn

Defendants' central argument concerning why Mrs. Kaiser's failure to warn claim must fail is one of causation. Ethicon argues that Kaiser failed to offer sufficient evidence at trial that Dr. Bales, the surgeon who implanted the Prolift device into her, was not adequately warned of risks related to Prolift. [DE 416 at 10-16.] It is the sufficiency of the warnings to Dr. Bales—not Mrs. Kaiser—that is at issue here. This is because...