Earlier this month, a federal judge denied two multidistrict litigation (MDL) defendants’ bid to dismiss punitive damages in a pelvic mesh suit because they did “not present any arguments” specific to punitive damages, stressing that “[t]he court will not make arguments for the defendants.” Fox v. Ethicon, Inc. (In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig.), No. 2:12-cv-0878 (S.D. W. Va. July 8, 2016). The court’s ruling highlights the importance of specifically attacking punitive damages when moving for summary judgment. The standard for recovering punitive damages is almost always higher than that for other claims, so dismissal of punitives may still be obtainable even when it is denied for other claims.
Fox is one of more than 75,000 cases in seven pelvic mesh MDLs pending in the Southern District of West Virginia. It was among three waves of 200 cases selected by the court for pretrial discovery and motions practice. The defendants moved for summary judgment, and the court determined that Texas law applied.
After granting summary judgment as to certain of the plaintiffs’ underlying causes of action (i.e., failure to warn) and denying it as to others (i.e., design defect and negligence), the court turned to punitive damages. The court observed that “[t]he defendants assert that their Motion challenges all of the plaintiffs’ claims [including] punitive damages,” but the defendants did “not present any arguments regarding” punitives. The court, therefore, denied summary judgment on them.
The outcome in Fox illustrates an all-too-common occurrence in cases where punitive damages are sought. Punitive damages are recoverable only when there is a viable underlying cause of action such as negligence, failure to warn, or strict liability. Frequently, defendants move for summary judgment on all underlying causes of action, but do not make any substantive argument for the dismissal of punitive damages, asserting only that, with the underlying causes dismissed, punitives must fail, too. Often, however, courts decline to grant summary judgment on all of the underlying causes of action, meaning that some potential basis for punitive damages remains. If the defendant has not separately addressed punitives, they will be left in the case, as they were in Fox.
For this reason, defendants seeking summary judgment should always seriously consider specifically attacking punitive damages, especially because the standard for recovering them is almost always higher than that for underlying torts like negligence and strict liability. Whereas negligence is the failure to exercise ordinary care, punitives typically require that the defendant was at least consciously or recklessly indifferent. The burden of proof for punitive damages also may be higher (i.e., clear and convincing, as opposed to preponderance). These heightened standards mean that even when summary judgment is denied as to negligence, there may still be grounds for dismissing punitive damages due to insufficient evidence of the requisite culpability. Just last year, for instance, the same court presiding over Fox denied a product liability defendant’s bid for summary judgment on the plaintiffs’ “liability claims,” but nevertheless held that “Plaintiffs fail to articulate a basis for punitive damages.” Nease v. Ford Motor Co., No. 3:13-29840 (S.D. W. Va. Mar. 13, 2015).
As one court recently observed, “a punitive damages claim can be a ‘game changer’ in litigation.” TRG Desert Inn Venture, Ltd. v. Berezovsky, No. 3D15-424 (Fla. 3d DCA June 15, 2016). Accordingly, defendants should avail themselves of every opportunity to obtain dismissal of punitive damages, including by specifically attacking them at the summary judgment stage. Even if summary judgment on liability is denied, there may nevertheless be grounds for dismissal of punitive damages, which, in turn, can dramatically reduce a defendant’s potential exposure.