Springer v. Ethicon, Inc.
| Decision Date | 23 March 2018 |
| Docket Number | Case No. 17 C 3930 |
| Parties | THOMAS E. SPRINGER, in his capacity as trustee of the Chapter 7 bankruptcy estate of ROCIO HERRERA-NEVAREZ, Plaintiff, v. ETHICON, INC., and JOHNSON & JOHNSON, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Rocio Herrera-Nevarez (Herrera) sued Ethicon, Inc. and Johnson & Johnson, alleging that she suffered injuries arising from her use of a medical device they manufactured. After a seven-day trial, the jury found in Herrera's favor on her claim of negligent misrepresentation and awarded her $55,000 in compensatory damages for medical expenses. The jury found in favor of the defendants on Herrera's additional negligence and strict liability claims, and it declined to award punitive damages. Defendants have filed a renewed motion for judgment as a matter of law on Herrera's claims, and Herrera has moved for a new trial on damages or, in the alternative, a new trial on all issues. Herrera also has submitted a bill of costs, to which defendants object. For the reasons stated below, the Court denies defendants' renewed motion for judgment as a matter of law and denies plaintiff's motion for a new trial. The Court upholds some of defendants' objections to Herrera's bill of costs and overrules others.
The Court assumes familiarity with the June 2017 summary judgment opinion in this case, and it draws on that opinion for a portion of the background information provided herein. See Herrera-Nevarez v. Ethicon, Inc., No. 17 C 3930, 2017 WL 2591989 (N.D. Ill. June 15, 2017). In 2005, Herrera was surgically implanted with a Gynecare TVT Obturator System (TVT-O), which is a type of midurethral sling manufactured by Ethicon and designed to be implanted in the pelvic area to treat stress urinary incontinence in women. Between December 2009 and October 2011, Herrera began visiting a gynecologist to receive treatment for a number of gynecological and genitourinary symptoms, including pelvic pain, urinary problems, and painful sexual intercourse. In October 2011, Herrera saw a television advertisement that discussed safety issues associated with devices like the TVT-O. In March 2012, she filed a lawsuit against Ethicon in this district. The following month, Herrera's case was transferred to the Southern District of West Virginia as part of multi-district litigation (MDL) proceedings coordinated out of that district. While the case was pending in West Virginia, Herrera filed an amended complaint adding Johnson & Johnson as a defendant. Herrera's case proceeded through discovery and other pre-trial proceedings as part of the MDL, and, in January 2017, the judge presiding over the MDL granted summary judgment in favor of defendants on some of Herrera's claims but denied summary judgment on others.
The case was remanded to this district for trial in February 2017. In May 2017, defendants moved for summary judgment on all of Herrera's remaining claims. Defendants argued primarily that Herrera was judicially estopped from asserting herpersonal injury claim because she failed to disclose it during her 2011 bankruptcy proceedings. Defendants also argued that although Herrera was not the real party in interest in this case, the Court should not allow her to substitute the trustee of her bankruptcy estate as the plaintiff. In May 2017, the Court overruled defendants' substitution argument and granted Herrera's motion to substitute Thomas E. Springer, the trustee of her Chapter 7 bankruptcy estate, as the real party in interest. See May 16, 2017 Minute Entry (dkt. no. 177). The Court subsequently overruled defendants' judicial estoppel argument and denied summary judgment in a June 2017 opinion. See Herrera-Nevarez, 2017 WL 2591989, at *4.
The case went to trial in August 2017. Defendants filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) at the close of Herrera's case, and they renewed their motion at the end of the trial, just before the case was submitted to the jury. The Court submitted three claims to the jury: negligence, strict liability, and negligent misrepresentation. The negligence and strict liability claims were both brought under theories of failure to warn and defective design. As previously noted, the jury found in favor of the defendants on the negligence and strict liability claims, and it found in Herrera's favor on her claim of negligent misrepresentation and awarded $55,000 in compensatory damages. The jury did not award any punitive damages, damages for past or future pain and suffering or damages for loss of a normal life; all $55,000 was allocated to "[t]he reasonable expense of necessary medical care, treatment, and services received." Pl.'s Mot. for New Trial, Ex. A.
Defendants have filed a renewed motion under Rule 50(b) for entry of judgmentas a matter of law. In support of this motion, defendants incorporate by reference the arguments made in their summary judgment motion involving judicial estoppel. They further argue that judgment as a matter of law is proper on the negligent misrepresentation claim because Herrera did not submit sufficient evidence (1) of any allegedly false representation by Ethicon other than the TVT-O Instructions for Use, which defendants contend cannot support the claim; (2) that Dr. Vassallo—the doctor who recommended and implanted Herrera's TVT-O—relied on any representation by Ethicon; and (3) that any reliance on an alleged misrepresentation by Ethicon caused Herrera's injuries. Defendants also present arguments pertaining to Herrera's strict liability and negligence claims for the Court to consider in the event that it sets aside the jury's verdict in their favor on those claims pursuant to Herrera's motion for new trial.
Herrera has moved for a new trial on damages or, in the alternative, a new trial on all issues. First, Herrera contends that a new trial on damages is warranted on the ground that the jury's award of $0 for pain and suffering was manifestly inadequate. She further argues that the Court erred in excluding a June 2011 report on pelvic mesh degradation commissioned by Ethicon and evidence that Ethicon's competitors removed their own midurethral slings from the market due to complications associated with the slings. Herrera contends that these alleged errors deprived her of a fair trial and that she is therefore entitled to a new trial on the issue of damages. In the alternative, Herrera argues that these same errors, in combination with the Court's denial of her request to list "failure to test" as another basis for liability for negligence in the jury instructions provide a basis for granting a new trial on all issues.
Herrera also has submitted a bill of costs. Defendants object to the bill of costson a several grounds. They first argue that costs should be denied entirely or globally reduced by 75 percent to account for the fact that Herrera prevailed on only one of the claims that the Court submitted to the jury. Defendants also take issue with the majority of the specific costs requested.
The Court addresses each of these motions in turn.
On a renewed motion under Rule 50(b) for judgment as a matter of law, a court is "limited to deciding only whether the evidence presented at trial, with all the reasonable inferences drawn there from, is sufficient to support the verdict when viewed in the light most favorable to the [nonmoving party]." Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1043 (7th Cir. 2000) (internal quotation marks and citation omitted); see also Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012) (). After reviewing all the evidence in the record, a court must disregard all evidence favorable to the moving party that the jury was not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). A jury verdict will be overturned only if the court concludes that "no rational jury could have found for the plaintiff." Hasham, 200 F.3d at 1043 (citation omitted).
The Court adopts and reaffirms its earlier decisions with respect to the substitution and judicial estoppel arguments initially presented in defendants' May 2017motion for summary judgment. The present ruling focuses solely on the issues raised for the first time in defendants' latest renewed motion for judgment as a matter of law.
As previously noted, the jury returned a defense verdict on Herrera's negligence and strict liability claims, both of which were brought under failure to warn and design defect theories. Defendants contend that, in reaching a verdict for the defense on those claims, the jury necessarily found either that the TVT-O Instructions for Use (IFU) were adequate or that any inadequacy in the instructions did not cause Herrera's injury. Defendants therefore argue that any alleged misrepresentation in the IFU cannot support a verdict in favor of Herrera with respect to the negligent misrepresentation claim.
Defendants seem to assume that a verdict in favor of Herrera on the negligent misrepresentation claim would be inconsistent with verdicts in favor of defendants on the negligence and strict liability claims. The Court disagrees. Although civil juries must return consistent verdicts, courts are required to reconcile apparently inconsistent verdicts if it is possible to do so. Deloughery v. City of Chicago, 422 F.3d 611, 617 (7th Cir. 2005); see also Am. Cas. Co. of Reading, Pa. v. B. Cianciolo, Inc., 987 F.2d 1302, 1306 (7th Cir. 1993) (...
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