We don’t normally comment on verdicts, whether they favor our side or the plaintiffs, because the bare fact of a verdict doesn’t give us much to analyze, and analysis is what this blog is about. But we make an exception for the bizarre verdict handed down last week in the first bellwether trial in the Bard IVC Filter MDL.
We’ve seen the verdict form, and the plaintiffs submitted four theories of liability to the jury: (1) strict liability design defect; (2) strict liability failure to warn; (3) negligent design; and (4) negligent failure to warn. According to the 360 story (unfortunately behind a paywall to non-subscribers), the jury found that the defendant’s IVC filter wasn’t defectively or negligently designed, and – more importantly for our purposes – also held that there was no strict liability warning defect (the case was under Georgia law, and Georgia is a Restatement §402A state).
After having rendered defense verdicts on the first three theories, the IVC jury found that, somehow, the defendant had negligently failed to warn about the same risks as to which there was no strict liability warning defect.
That’s inconsistent, if not impossible.
We haven’t looked at Georgia law, but the exact same thing happened not too long ago in California, in Trejo v. Johnson & Johnson, 220 Cal. Rptr.3d 127 (App. 2017), review denied (Cal. Oct. 11, 2017), a case we blogged about here. In Trejo, we were mostly interested in the fate of the plaintiff’s design-related claims (they were preempted), but the court also held that, where the jury had determined that no warning-related, strict-liability defect existed, it was inherently inconsistent for the jury to turn around and find negligent failure to warn:
Considering that both the strict liability and negligence theories were premised on a single alleged defect – failure to warn of [the same risk] – the jury’s findings meant, in substance, that [defendant] was not strictly liable for failure to warn of those possible reactions because they created no substantial danger, but was liable for negligent failure to warn because those possible reactions were, or were likely to be, dangerous. As we next explain, we conclude that these verdicts are fatally inconsistent.
Trejo, 220 Cal. Rptr.3d at 142.
Why is that? We’ll let the California Court of Appeals explain.
“[A] finding of negligent failure to warn is logically and legally inconsistent with the jury’s finding [in favor of defendants] on plaintiffs’ strict products liability failure to warn.” Id. (quoting Oxford v. Foster Wheeler LLC, 99 Cal. Rptr.3d 418, 435 (App. 2009)). That’s because “the manufacturer’s strict liability duty to warn is greater than its duty under negligence, and thus negligence requires a greater showing by plaintiffs.” Id. (Valentine v. Baxter Healthcare Corp., 81 Cal. Rptr.2d 252, 263 (App. 1999)).
Strict liability was invented precisely so it would be easier to prove than negligence. Thus a “defense verdict . . . on strict liability failure to warn subsume[d] the cause of action for negligent failure to warn so that” the proper result was “to direct a defense judgment on that negligence count.” Trejo, 220 Cal. Rptr.3d at 142 (quoting Valentine again). “[T]he defense verdict on strict liability failure to warn mandated a defense verdict on negligent failure to warn as well.” Id.
A negligence formulation of a warning claim – that a defendant “has a duty to use reasonable care to give a warning” of a risk that makes the product “likely to be dangerous” to users whom “the supplier has reason to believe . . . will not realize [the product’s] danger,” id. – requires greater proof of failure to warn than strict liability, which allows recovery whenever a “substantial” danger requires a better warning than what the plaintiff (or the physician in a learned intermediary case) received:
[A] product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger but fails to give adequate warning of such danger. A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer is either aware or should be aware, and that would not be recognized by the ordinary user.
Id. at 142-43 (mostly quoting Valentine again). “[T]he strict liability definition of defective product, coupled with . . . the strict liability duty to warn physicians of the potential risks or side effects of [a medical device] that were ‘known or knowable,’ more than subsumed the elements of duty to warn set forth in the negligence instructions.” Id. at 143.
[T]he ‘known or knowable in light of’ language in the strict liability instruction at a minimum encompasses the ‘knows or has reason to know’ language in the negligence instruction. Under a negligence standard, a reasonable manufacturer would not be charged with knowing more than what would come to light from the prevailing scientific and medical knowledge.”
Id. at 144 (quoting Valentine again).
The Trejo decision goes on, reviewing other cases in which courts have found inherently inconsistent verdicts where the jury found for the defendant on strict liability warning defect but for the plaintiff on negligent failure to warn. Id. at 143-48 (discussing, both Valentine, supra (a medical device case), and Oxford, supra at great length). Trejo also rejected the plaintiff’s attempted counter that “negligence and strict products liability are not identical doctrines:
True enough − the two theories of products liability are not identical. . . . the difference between strict liability failure to warn and negligent failure to warn [is] . . . that, unlike negligent failure to warn, strict liability is not concerned with the standard of due care or the reasonableness of a manufacturer’s conduct. . . . [A] manufacturer could be held liable under strict liability principles even if its failure to warn conformed to industry-wide practices and thus was not negligent. [The law does] not, however, indicate that a manufacturer could be held liable for negligent failure to warn despite being found not liable for strict liability failure to warn. Indeed, as illustrated by Valentine and Oxford, this cannot be so where, as here, only one viable factual basis supports both theories.
Id. at 148 (citations and quotation marks omitted).
A similar result to Trejo and Valentine was reached decades earlier in Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980):
The effect of the jury verdict on negligence was to find that [defendant] failed to use due care to give an adequate warning of the propensities of the drug marketed, and, in the same breath, the verdict on strict liability found that the drug marketed with such an inadequate warning was not unreasonably dangerous. The verdicts in the context of this failure to warn case involving prescription drugs are obviously inconsistent and cannot stand.
Id. at 860. See Witt v. Norfe, Inc., 725 F.2d 1277, 1280 (11th Cir. 1984) (defense verdicts on strict liability and warranty were “irreconcilably contradictory” with plaintiff’s verdict on negligence) (applying Florida law); In re Baycol Products Litigation, 2008 WL 6155700, at *13 (D. Minn. Sept. 22, 2008) (“failure of a plaintiff’s strict liability failure to warn claim, results in the same fate for a plaintiff’s negligent failure to warn claim”), aff’d, 596 F.3d 884 (8th Cir. 2010) (applying California law).
Finally, the irreconcilability of the verdict in IVC Filter may well be a fortiori from the Trejo/Oxford/Valentine cases out of California. The California law at issue in those cases was crystal clear that, in both negligence and strict liability warning claims, liability is limited by the state of the art defense. Georgia law, on the other hand, lacks definitive precedent imposing state of the art as a limitation on strict liability. The closest precedent we have found is McCombs v. Synthes (U.S.A.), 587 S.E.2d 594, 596 (Ga. 2003), a medical device decision recognizing that warning claims generally are held to a “reasonableness” standard. Thus, strict liability warning claims may be even easier for plaintiffs to prove, compared to negligence, under Georgia law. That would make the irreconcilability of the IVC Filter verdict for plaintiff on negligence even greater than is the case under Trejo/Oxford/Valentine.
Exactly why the jury in IVC Filter returned such blatantly irreconcilable verdicts is, of course, something we will never know. From the 360 article, however, we spotted a couple of things that couldn’t have contributed to the mix-up. First, punitive damages were also at issue in the case. Our views on the prejudicial nature of evidence relating to that kind of claim are already set forth at some length in our post advocating that MDL defendants limit any so-called “Lexecon waivers” to compensatory damages. It may well be that prejudicial intent evidence, relating solely to punitive damages, inflamed the jury on the liability question so that even though they could not find that the product was defective, the jury was dead set on finding for the plaintiff anyway. Don’t know, but certainly plausible.
Second, and possibly related, the 360 article also quotes plaintiffs’ counsel as arguing that the “simple fix” was “[d]on’t put it [the device] on the market.” To us, that kind of rhetoric is unacceptable because it encourages the jury to disregard the FDA’s decision that initially allowed the product to be marketed. A claim that a defendant manufacturer should not have sold a product that the FDA has determined should be sold in the United States inherently conflicts with the power that Congress has vested in the FDA specifically to make those decisions. See Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 489-90 (2013) (claims “that a regulated actor could avoid liability under both state and federal law by simply leaving the market” held impliedly preempted). Plaintiffs should never have been allowed to make that sort of appeal to the jury to nullify what the FDA decided.
It seems quite evident that the jury got confused and went astray in the first Bard IVC Filters bellwether trial. The result was a verdict that can’t logically be a bellwether of anything. The jury found for the defendant on a warning claim for which the plaintiff had a lesser standard of proof, and then found for the plaintiff on identical warning-related facts where the law required stronger evidence for liability. That’s what precedent means by “irreconcilable.”