This post is from the non-Dechert side of the blog.
We previously discussed some favorable motion in limine rulings in the hernia (not pelvic) mesh case, Africano v. Atrium Medical Corp., 2021 WL 4477867 (N.D. Ill. Sept. 30, 2021). They were a welcome change from the appalling MDL choice of law rulings against the same mesh defendant (various products) that we had castigated here, and here.
Well, motions in limine mean that the case is close to trial, and in Africano the defendant did indeed go to trial – and received a full defense verdict. According to the news reports, it took the jury only a tidy twenty minutes to conclude that the plaintiff’s case was barnyard excrement and to find for the defendant. We understand that the plaintiffs couldn’t even come up with a surgeon to testify as an expert, and had to settle for a pathologist who had never worked with the product (or any similar product). Evidently it showed.
That reminds us of the Bone Screw litigation where, among the many reasons the plaintiffs lost, was their failure for over a decade to find a single orthopedic spine surgeon willing to testify for them as an expert witness.
But as a blog, we don’t chortle about verdicts (much); we prefer to discuss useful judicial decisions. So we wondered whether rulings existed as to any of the other motions in limine (the previous decision, 2021 WL 4477867, dealt with defendant’s motions 1 and 5), and went looking. There was nothing on Lexis or Westlaw, so we turned to PACER. Sure enough, two more trial-related rulings were on the docket − that neither service had picked up. We made sure to send them on, so here they are: Africano v. Atrium Medical Corp., 2021 WL 4940974 (N.D. Ill. Oct. 5, 2021), and Africano v. Atrium Medical Corp., 2021 WL 4940976 (N.D. Ill. Oct. 4, 2021).
The October 5 Africano decision decided the defendant’s motion in limine #2, and excluded the great bulk of FDA related materials that were at issue – warning letter statements, Forms 483, and adverse event reports. As we’ve pointed out, warning letters (and Forms 483 as well) are not final FDA action, so we question what basis exists to admit what amount to unproven violation allegations. But the only issue presented was hearsay. The defendant didn’t win on its broad argument that lack of finality meant that the items couldn’t be “factual findings” under F.R. Evid. 803’s public records exception. Rule 803 “encompasses opinions and conclusions and is not limited to purely factual findings.” United States v. Sutton, 337 F.3d 792, 797 (7th Cir. 2003). So the defendant lost that argument:
Defendant will have an opportunity to show that the statements in the documents are non-final agency documents, and this Court can also issue a cautionary instruction at trial to temper undue weight as to the statements contained in the FDA documents.
2021 WL 4940974, at *2 (citation and quotation marks omitted).
But that’s about all the defendant lost.
Not only did these documents contain hearsay – but in many instances double hearsay. “On this basis, the Court precludes references to MDR’s attached to the Forms 483.” Id. Also, a lot of the material was irrelevant because the FDA’s observations did not concern the purported product defect that the plaintiff was claiming. “This Court agrees that evidence of other products and other issues unrelated to [claimed defect] are irrelevant and their introduction might be unduly prejudicial and confusing to the jury.” Id.
The court considered this issue through the lens of similar occurrence evidence, where:
Before admitting such evidence, Plaintiff must show that the other accidents occurred under substantially similar circumstances because the probative force of evidence of other accidents decreases as the circumstances and conditions of the other accidents become less similar to the accident under consideration.
Id. (citation and quotation marks omitted). “[O]ther topics in an FDA warning letter” that are “unrelated to the issues in the case” fail this test – and the plaintiff “ma[de] no specific showing of substantial similarity.” Id. (citation omitted). And even if the plaintiff had made the necessary similarity showing the FDA-related evidence was excludable under F.R. Evid. 403 (prejudice outweigh probativeness).
The October 4 Africano decision is even more significant – and could also have a bearing on the MDL litigation. Like the Atrium MDL rulings that we complained about, the primary issue in this decision was choice of law. Like the Atrium MDL rulings that we complained about, the ruling applied the law of the defendant’s domicile, New Hampshire. But extremely unlike those MDL rulings, in Africano the application of New Hampshire law favored the defendant.
New Hampshire law does not allow punitive damages.
There exists a clear conflict here. Illinois allows a plaintiff to recover punitive damages in product liability cases. . . . In contrast, New Hampshire law provides that “No punitive damages shall be awarded in any action, unless otherwise provided by statute.” N.H. Rev. Stat. Ann. §507:16. Plaintiff has not identified any statutory basis for punitive damages here, and thus, he cannot recover punitive damages if New Hampshire law applies.
2021 WL 4940976, at *1 (other citations omitted).
Significantly – and similarly to the vast majority of plaintiffs in any given MDL – the plaintiff was not injured in the forum state. This particular plaintiff received the product in another state (Wisconsin), and only later moved to the forum state (Illinois). Id. at *2. Thus, the defendant’s location, as the place where “the conduct causing the alleged injury occurred” offset the place of injury, and neither was the forum state. Id. Even if the plaintiff’s injury had occurred in the forum state:
Punitive damages serve a public goal of punishing the defendant for its wrongdoing and protecting the public from future misconduct, either by the defendant or by others, and thus, the state in which a defendant is domiciled tends to have a stronger policy interest in whether punitive damages are available than the state in which the plaintiff’s injury occurred.
Id. (citation and quotation marks omitted). Thus, the court applied New Hampshire law, which precluded punitive damages:
New Hampshire clearly has the stronger interest in governing punitive damages than Illinois (where Plaintiff lives) or even Wisconsin (where Plaintiff sustained his injury). Defendant is headquartered in New Hampshire. The conduct that allegedly caused Plaintiff’s injury occurred in Defendant’s headquarters and in its New Hampshire factory, the places where Defendant’s officers and/or employees allegedly made decisions about product warnings and where Defendant made the product that allegedly injured Plaintiff. New Hampshire would have a greater interest in determining whether to punish and deter conduct occurring within its borders.
Id. “[B]ecause punitive damages serve as ‘punishment, not compensation,’ the proper focus is upon the state where the defendant ‘is headquartered’ because that state’s interest in ‘regulating the conduct of its resident corporations far outweighs whatever interest’ the plaintiff’s home state had in deciding whether to punish a non-resident corporation.” Id. (quoting Smith v. I-Flow Corp., 753 F. Supp. 2d 744, 748-49 (N.D. Ill. 2010)). For this reason, Africano refused the plaintiff’s suggested jury instructions on punitive damages.
If your client’s corporate headquarters is in New Hampshire, this second Africano decision can be quite significant.
Finally, see what we did here. Lexis and Westlaw had both missed these two Africano decisions. Because our interest was piqued, we went on PACER and found them ourselves – so they will be preserved and available to future defense counsel. We invite our readers to send us their favorable – pro-defense – opinions, and we’ll take care of getting them to the online services.