By Jeffrey H. Brochin, J.D.
A jury’s return of a verdict finding liability for negligent failure to warn, but no liability for strict liability and other claims, although inconsistent, did not constitute grounds for granting a new trial, a federal district court in Arizona has ruled. Both the court’s instructions and the verdict form required the jury to decide which party would prevail, and they properly performed that essential function. The U.S. Supreme Court has not recognized an inconsistent verdict as one of the historically recognized grounds allowing the court to grant a new trial (Booker v. C.R. Bard, Inc., June 19, 2018, Campbell, D.).
More dangerous than other IVC filters. Before surgery in June 2007, the patient was implanted with an inferior vena cava (IVC) filter manufactured by C.R. Bard, Inc. (Bard). Seven years later, it was discovered that the G2 filter had tilted, penetrated the IVC wall, and fractured, and that one strut of the filter had migrated to the right atrium of the patient’s heart. Subsequent x-rays revealed two other fractured struts and multiple legs perforating the IVC. She underwent surgery in July 2014, and the G2 filter and one of the fractured struts in the IVC were removed. However, during attempts to remove the strut from the patient’s heart, her tricuspid valve was damaged and she had to undergo open heart surgery to repair the tricuspid valve and remove the strut from her right atrium. One fractured strut remains embedded in her IVC wall. She filed suit in February 2016, alleging that Bard filters are more dangerous than other IVC filters because they have higher risks of complications, and that Bard failed to warn physicians and patients about these higher risks. The jury found in favor of the patient on one of four claims and awarded her $3.6 million in damages.
Because the jury rendered inconsistent verdicts as to strict liability versus negligent failure to warn, Bard moved for judgment as a matter of law and a motion for a new trial. The court denied both motions.
Unacceptable failure rates. A court may grant judgment as a matter of law if a party has been fully heard on an issue and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. Bard argued that the evidence presented at trial was insufficient to support the jury’s verdict on the negligent failure to warn claim and punitive damages, however, the court determined that the G2 filter in fact had known higher failure rates than other IVC filters, including other models manufactured by Bard, and that the company’s own internal analysis showed that the G2 experienced caudal migration at rates higher than those for the SNF and the G2 filter’s predicate device, the Recovery, and that Bard found the risks associated with caudal migration to be "unacceptable."
The court found that the jury could reasonably have concluded from the evidence that Bard knew the G2 filter experienced caudal migration at rates higher than other filters and that this type of failure could lead to other complications. Nevertheless, Bard failed to warn physicians about the G2 filter’s higher complication rates, and the court concluded that sufficient evidence was presented to support the jury’s finding that Bard failed to provide an adequate warning about the G2 filter’s complications and risks.
Inconsistent verdicts. The court noted that the Federal Rules of Civil Procedure allow for special verdicts and general verdicts with interrogatories, and common law general verdicts without interrogatories. In the present case, the jury returned ordinary general verdicts. For each of the four claims, the verdict form asked the jury whether it found Bard liable to the patient, and the jury answered "Yes" on the negligent failure to warn claim and "No" on the other three claims, before determining the total amount of compensatory damages.
Both the court’s instructions and the verdict form required the jury to perform the most essential function that marks a general verdict: to decide which party prevails. Furthermore, longstanding precedent dictates that most general verdicts should stand even if there is an inconsistency, and the court ruled that even if the strict liability and negligence claims were identical, this would not make one the legal prerequisite for the other.
The case is No. 2:15-cv-02641-DGC.
Attorneys: Robin P. Lourie (Watkins Lourie Roll & Chance PC) for Sherr-Una Booker. Aaron A. Clark (McGrath North Mullin & Kratz, PC, LLO) for C. R. Bard, Inc. and Bard Peripheral Vascular Inc.
Companies: C. R. Bard, Inc.; Bard Peripheral Vascular Inc.
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