United States: Fourth Circuit Upholds $1.75 Million Punitive Damages Award In Transvaginal Mesh Case

Last Updated: January 19 2016
Article by Evan M. Tager

Keywords: Evidence, Split Recovery Statutes

About a month ago, we reported on a Delaware trial court decision reducing a $75 million punitive award to $7.5 million in a transvaginal mesh case. Last week, in what we believe to be the first appellate decision in one of these cases, the Fourth Circuit upheld a verdict of $250,000 in compensatory damages and $1.75 million in punitive damages.

The decision in Cisson v. C.R. Bard, Inc. implicates a number of issues that may arise with some frequency in punitive damages cases.

The facts of the case are not particularly relevant. Suffice it to say that Bard's device was implanted into the plaintiff's body to treat pelvic organ prolapse. After the device was implanted, the plaintiff experienced a variety of symptoms, and the device ultimately was removed.

The plaintiff sued, alleging various causes of action under Georgia law. The case was ultimately moved to the Southern District of West Virginia as part of a multidistrict litigation involving tens of thousands of claims against several different manufacturers. This was the first case in the MDL to go to trial. The plaintiff prevailed on her claims for design defect and failure to warn, and the jury awarded $250,000 in compensatory damages and $1.75 million in punitive damages. The district court denied Bard's post-trial motions, and the Fourth Circuit affirmed.

Bard raised a number of evidentiary and instructional issues that, with one exception, don't bear on punitive damages. The exception has to do with the district court's exclusion of evidence that Bard complied with the 510(k) process for marketing of medical devices that are substantially equivalent to ones that were in existence in 1976. Relying on Georgia case law holding that compliance with federal or state regulations negates the mental state necessary for imposition of punitive damages, Bard contended that its compliance with the 510(k) process was highly relevant to punitive damages.

The Fourth Circuit rejected this argument, reasoning that while compliance with safety regulations may well be relevant to punitive damages, the 510(k) process is "something less than a safety requirement." To the contrary, it said, "the decision to pursue 510(k) clearance was a choice to minimize the burden of compliance, potentially cutting in favor of punitive damages" (emphasis added).

I'm no expert on the medical device regulatory regime, but the notion that the 510(k) process is not designed to ensure device safety strikes me as quite improbable. And I have to wonder why that shouldn't be up to a jury to decide in any event. Particularly because punitive damages are stigmatizing, there should be a heavy presumption in favor of allowing defendants to introduce any evidence that is even conceivably exculpatory. If bifurcation or limiting instructions are necessary to prevent the evidence from affecting the jury's resolution of issues as to which the evidence is irrelevant or more prejudicial than probative, due process mandates that the court provide those procedures rather than exclude the evidence outright.

After rejecting the rest of Bard's new trial arguments, the Fourth Circuit turned to the argument that the $1.75 million punitive award was unconstitutionally excessive. The court indicated that Bard had not contended that the punitive award was disproportionate to the degree of reprehensibility of its conduct and instead had limited its argument to the ratio guidepost, asserting that a 7:1 ratio is per se unconstitutional under State Farm. Having been given an easy target to shoot at, the Fourth Circuit had no trouble hitting it, pointing out that the Supreme Court consistently has refused to impose a bright-line ratio that a punitive award may not exceed.

Ordinarily, at this point I'd criticize the court for failing to appreciate that a 7:1 ratio can be constitutionally permissible in one mass tort case only if the same ratio could be imposed in all of the other cases without the resulting aggregate punishment being grossly excessive—as we have explained in posts about a $70 million verdict in a hemorrhoid staple case, the Delaware transvaginal mesh case, a hip implant case against Wright Medical Technology, and the Actos litigation against Takeda.

But this case may be different. Georgia's punitive damages statute provides that "[o]nly one award of punitive damages may be recovered in a court in this state from a defendant for any act or omission if the cause of action arises from product liability, regardless of the number of causes of action which may arise from such act or omission."

It is not clear whether the reference to "in a court in this state" should be taken literally to prevent a verdict in the court of another state from counting even when the case is governed by Georgia law. Presumably, the Georgia General Assembly intended to prevent serial punitive awards for harms to Georgia residents regardless of where the cases are tried. Certainly, I would expect that to be Bard's position in the next case involving a Georgia plaintiff. But for that reason, Bard couldn't argue to the courts in this case that the punitive damages must bear a more modest ratio to the compensatory damages in order to avoid excessive multiple punishment.

Finally, the Georgia statute provides that 75% of any punitive award—after deduction of reasonable attorneys' fees and costs—must be paid to the State. The plaintiff challenged the statute under the Takings Clause. The Fourth Circuit rejected her argument, observing that insofar as the General Assembly created a property interest in punitive damages by enacting the punitive damages statute—a questionable assumption, I might add—it was entitled to define the scope of that interest within the same statute.

Although at first blush, this holding might appear to be pro-defense, split-recovery statutes have the potential to result in the imposition of higher absolute amounts of punitive damages. If juries are aware of the statutes—as a result of either media coverage or, heaven forbid, jury instructions—they might ratchet up their awards both to enrich the state fisc and to ensure that the plaintiff gets what they consider to be an adequate amount from the pot.

Originally published January 19, 2016

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Mayer Brown
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Mayer Brown
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions