Rejecting the defendant’s claim that a new trial should have been ordered when the jury initially returned an inconsistent verdict, a federal court in Florida has confirmed a jury’s $1.3-million verdict for a woman claiming that use of the defendant’s drug caused her osteonecrosis of the jaw (ONJ). Guenther v. Novartis Pharm. Corp., No. 08-456 (U.S. Dist. Ct., M.D. Fla., Orlando Div., order entered November 14, 2013).
The jury answered two liability questions: the first asked if the company “negligently failed to provide an adequate warning,” and the second asked whether the drug “was defective in that it was marketed . . . with inadequate warning or instruction regarding ONJ?” The jury answered the first “yes” and the second “no” and awarded $1.3 million damages. Novartis objected to the verdict as inconsistent, and plaintiffs’ counsel agreed. The court proposed telling the jury that their answers to the two questions must be consistent, the parties agreed and the jury was so instructed. Ten minutes later the jury returned with an amended verdict, answering both questions “yes.” In its motion for a new trial, the company said that the court should instead have ordered a new trial. Federal Rule of Civil Procedure 49(b) requires courts, where a jury returns inconsistent answers, to “direct the jury to further consider its answers and verdict, or . . . order a new trial.”
While acknowledging juror confusion by the separation of the two theories into separate questions, the court said that the confusion was remedied by the court’s subsequent charge, and the jury’s amended verdict was consistent with the initial award. The court said, “The mere fact that the jury’s confusion was rectified quickly does not, as Novartis suggests, imply any impropriety on the jury’s part.” The court also recommended that courts facing a similar circumstance in the future consider compressing the two theories into a single question for the jury.