United States District Court, N.D. Illinois, Eastern Division
THOMAS E. SPRINGER, in his capacity as trustee of the bankruptcy estate of ROCIO HERRERA-NEVAREZ, Plaintiff,
ETHICON, INC., and JOHNSON & JOHNSON, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, United States District Judge
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.
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.
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
her personal 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
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.
have filed a renewed motion under Rule 50(b) for entry of
judgment as 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.
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
also has submitted a bill of costs. Defendants object to the
bill of costs on 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
Court addresses each of these motions in turn.
Defendants' renewed motion for judgment as a matter of
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) ("In deciding a Rule 50 motion, the court
construes the evidence strictly in favor of the party who
prevailed before the jury and examines the evidence only to
determine whether the jury's verdict could reasonably be
based on that evidence."). 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).
Court adopts and reaffirms its earlier decisions with respect
to the substitution and judicial estoppel arguments initially
presented in defendants' May 2017 motion 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.
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
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) ("[W]e should do what we can to save the
verdict against the specter of inconsistency."). The
jury instructions given in this case stated that the
plaintiff had to prove each of the following elements by a
preponderance of the evidence to prevail on a negligent
1. The defendants made an inaccurate or false statement of
material fact to prescribing physicians regarding the safety
and reasonable fitness of the TVT-O. A statement of fact is
material if it is capable of influencing the decision of a
2. The defendants were negligent in ascertaining the truth of
The term "negligence" means failing to do something
that a reasonably careful medical device manufacturer would
do, or doing something that a reasonably careful medical
device manufacturer would not do, under circumstances similar
to those shown by the evidence.
3. When the defendants made the inaccurate or false
statement, they intended to induce the plaintiff's
physician to act.
4. The plaintiff's physician acted in reliance on the
truth of the statement made by the defendant.
5. The plaintiff was damaged as a result of her
physician's reliance on the statement.
6. The defendant had a duty to communicate accurate
information to the plaintiff's physician.
Pl.'s Mem. in Resp. to Defs.' Rule 50(b) Mot.
(Pl.'s Rule 50(b) Resp.), Ex. B. By contrast, the
instructions on negligence stated that the jury should find
for Herrera if she proved by a preponderance of the evidence
1. The defendants [failed to design the TVT-O properly and /
or failed to adequately warn prescribing doctors of the risks
associated with the product], and that in so acting or
failing to act, the defendants were negligent.
2. The plaintiff was injured.
3. The defendants' negligence was a proximate cause of
the plaintiff's injury. Pl.'s Rule 50(b) Resp., Ex.
A. The jury instructions for the strict liability claim
stated that, for the jury to find for Herrera on this claim,
she had to prove each of the following elements by a
preponderance of the evidence:
1. One or both of the conditions listed as (a) and (b)
[either (a) it had a defective design and / or (b) the
defendants failed to provide adequate warnings to prescribing
doctors of the risks associated with the TVT-O] existed in
the TVT-O at the time it left the defendants' control.
2. The condition made the TVT-O unreasonably dangerous.
3. The plaintiff was injured.
4. The condition was a proximate cause of the plaintiff's
See Trial Tr. 1317:19-1318:1 (dkt. no. 341).
contrast with the strict liability and negligence jury
instructions, the negligent misrepresentation instruction
makes no mention of inadequate warnings; instead, the
negligent misrepresentation claim depends on proof of an
"inaccurate or false statement of material fact to
prescribing physicians regarding the safety and reasonable
fitness" of the product. Pl.'s Rule 50(b) Resp., Ex.
B. In this case, the jury could have found that the IFU
contained an inaccurate or false statement of material fact
because, as Herrera pointed out during trial, it specifically
stated that the TVT-O's Prolene mesh material "is
not absorbed, nor is it subject to degradation or
weakening by the action of tissue enzymes." Defs.'
Rule 50(b) Mot., Ex. C, at 7 (emphasis added). Through expert
witness Dr. Rosenzweig, Herrera presented evidence that
defendants were aware of degradation problems with the mesh
long before 2005. For example, Dr. Rosenzweig testified that
an internal Ethicon study from 1992, which the jury received
into evidence, showed that, in animal testing, Prolene,
"which is the same material that's made up of [sic]
the TVT obturator, was degrading and the degradation was
increasing at seven years." Pl.'s Rule 50(b) Resp.,
Ex. C 380:5-380:11.
not inconsistent for the jury to find that Dr. Vassallo
relied on an inaccurate or false statement in the IFU, which
ultimately caused injury to Herrera, and to simultaneously
conclude that Herrera failed to meet her burden of proof to
show that, overall, defendants failed to adequately warn of
the risks associated with the TVT-O. And, notwithstanding
defendants' arguments to the contrary, it is not the case
that, in returning a verdict for defendants on negligence and
strict liability, the jury necessarily found that every
statement in the IFU was either true or did not cause injury
to Herrera. Lastly, defendants' contention that the
statement in the IFU regarding degradation is irrelevant
because "[i]n a case involving a prescription device, it
is the physician's knowledge of the complication that
counts, not the material characteristic that causes a
complication" is equally without merit. Defs.' Reply
in Supp. of Rule 50(b) Mot. at 3. Defendants cite no
authority to support this proposition, and it is unsupported
by the jury instructions for negligent misrepresentation,
which encompass all "inaccurate or false statement[s] of
material fact . . . regarding the safety and reasonable
fitness of the TVT-O." Pl.'s Rule 50(b) Resp., Ex.
B. Whether the mesh used in the device is subject to
degradation is clearly related to its safety and reasonable
fitness. The Court therefore overrules defendants'
arguments that allegedly inaccurate or false statements in
the IFU cannot form the basis of Herrera's negligent
also argue that there is no evidence that Dr. Vassallo relied
on the IFU. Dr. Vassallo acknowledged in his deposition
testimony that certain information he was shown
during litigation about the mesh being subject to degradation
contradicted the IFU's assurance that the mesh did not
degrade. See Pl.'s Rule 50(b) Resp., Ex. F
186:15-186:16. Nonetheless, when asked whether he would have
liked to have known such information before deciding to use
the TVT-O in patients, he responded, "[i]t doesn't
change my opinion, so no." Id. 186:17-186:22.
In fact, Dr. Vassallo testified that he did not rely on the
IFU in recommending and implanting Herrera's TVT-O, or in
warning Herrera about the risks related to the device:
Q. Did you rely on this IFU package insert in your
recommendation of TVT-O to ...