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Springer v. Ethicon, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 23, 2018

THOMAS E. SPRINGER, in his capacity as trustee of the bankruptcy estate of ROCIO HERRERA-NEVAREZ, Plaintiff,
v.
ETHICON, INC., and JOHNSON & JOHNSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, United States District Judge

         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.

         Background

         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 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 *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 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.

         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 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 costs requested.

         The Court addresses each of these motions in turn.

         Discussion

         A. Defendants' renewed motion for judgment as a matter of law

         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) ("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).

         The 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.

         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) ("[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 misrepresentation claim:

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 prescribing physician.
2. The defendants were negligent in ascertaining the truth of the statement.
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 that:

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 injuries.

See Trial Tr. 1317:19-1318:1 (dkt. no. 341).

         In 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.

         It is 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 misrepresentation claim.

         Defendants also argue that there is no evidence that Dr. Vassallo relied on the IFU. Dr. Vassallo acknowledged in his deposition testimony[1] 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 ...

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