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It’s a case that pre- and post-dates the IVC Filters MDL– Ocasio v. C.R. Bard, Inc., 2020 WL 3288026 (M.D. Fla.  Jun. 18, 2020).   In fact, this case got through summary judgment and Daubert rulings in Florida before being transferred to the MDL in Arizona in 2015.  Upon its return to Florida, only two substantive claims remained – negligence and strict liability design defect.  Id. at *1.  Those and a claim for punitive damages.  In the pre-MDL days, the court had ruled that Plaintiffs had set forth enough evidence for the question of punitive damages to be a triable issue.  Id.  But, a funny thing happened while this case was bouncing between opposite ends of the Sun Belt – circumstances changed and with them, so did plaintiffs’ punitive damages hopes.

First up, the court had to decide which state’s law to apply – Arizona or Florida.  Defendant took the position it didn’t matter because punitive damages were barred by both states.  So the court decided to examine both.  By statute in Arizona, a manufacturer cannot be liable for punitive damages if the product at issue was designed and manufactured “according to the terms of an approval, . . clearance, . . . or similar determination of a government agency.”  Id. at *3 (citing A.R.S. § 12-689A.1).  There is no dispute that the IVC filter plaintiffs allege caused their injuries was cleared by the FDA.  Plaintiffs, however, rely on an exception to that rule whereby if the manufacturer “…[i]ntentionally, and in violation of applicable regulations as determined by final action of the government agency, withheld from or misrepresented to the government agency information material to the approval or maintaining of approval of the product,” the ban on punitive damages does not apply.  Id. (citing A.R.S. § 12-698B.2).  They argued that the exception applied because they had demonstrated that the manufacturer withheld safety testing data from the FDA.  Id.  But the misrepresentation exemption requires “a finding by the FDA that it has been defrauded.”  Id.  If it didn’t, you’d be hearing a whole lot about Buckman and fraud-on-the-FDA being preempted right about now.  But because Arizona requires that the FDA must have made its own fraud/misrepresentation finding – all the court had to do was acknowledge that no such finding existed here.  No punitive damages under Arizona law.

Florida does not have the same type of bar to punitive damages for FDA approved products that Arizona does, but it does provide that punitive damages cannot be awarded if the defendant

establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term “the same act or single course of conduct” includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.

Id. (citing § 768.73, Fla. Stat.).  Here is the change in circumstances.  While Ocasio was pending in the MDL, the MDL court held a bellwether trial in Sherr-Unia Booker v. C.R. Bard, Inc., No. CV-16-00474-PHX-DGC (D. Ariz.). The jury awarded $2 million in punitive damages in that case.  Id So, having been hit with punitive damages in that case, defendant argued they were not available to the plaintiffs in Ocasio.

Plaintiffs’ first argument in response was that the issue was not yet ripe – that the issue of whether punitive damages were available or not is a matter for post-trial.  Id. at *4.  But this argument is inconsistent with the plain language of the statute which provides that punitive damages are unavailable if the defendant proves “before trial” that they were previously awarded.  Id.  According to its legislative history, one of the goals of the statute is to “reduce[ ] the number of cases where punitive damages might be awarded to plaintiffs.”  Id. Therefore, the court agreed the issue needed to be decided before trial.

That issue was twofold – were punitive damages previously assessed in an action “alleging harm from the same act” and if so, were they adequate.  On the first question, the court ruled in the affirmative.  The MDL trial involved an IVC filter of the same design as the one at issue in this case.  Id.  at *5.  The filters were treated the same by plaintiffs’ experts and they had the same predicate device.  Because the “ claims of the plaintiffs in both cases revolve around the same family and type of filter, and concern Defendants’ conduct with respect to these filters,” defendant has established that punitive damages were previously assessed against it for the “same act.”  Id.

Which left only the issue of the adequacy of the prior award.  Florida’s statute provides

In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant’s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.

Id. at *4.  Plaintiffs, however, did not present “clear and convincing evidence” that the first award was inadequate.  What plaintiffs established back in 2015 was that there were sufficient facts to create an issue as to whether punitive damages should be awarded.  But that is no longer the issue.  Those facts “do[] not provide insight as to whether the two million dollars in punitive damages already awarded . . . is sufficient or insufficient.”  Id. at *6.  Instead, the only relevant evidence offered was by defendant – that it had stopped selling the product.  Without clear and convincing evidence, punitive damages could not be awarded under Florida law.  When/if this case proceeds to trial – it will be without a claim for punitive damages which should mean it will be without evidence that would only be germane to punitive damages.  The kind of evidence that steers a trial away from real issues like causation in favor of sideshows on profits and the evils of big pharma.  The Sun Belt states may be taking a beating in the press right now for their handling for the covid-19 pandemic, but we laud their punitive damages positions.