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We think that a product can either be in a “defective condition unreasonably dangerous” or not in a “defective condition unreasonably dangerous.”  But it can’t be both.  Unfortunately, the Eighth Circuit did not see things our way in deciding defendant’s appeal in Bayes v. Biomet, Inc., — F4th –, 2022 WL 17661149 (8th Cir. Dec. 14, 2022).  This metal-on-metal hip implant case went to trial in October 2020 and the jury awarded plaintiff $20 million on a split verdict.  The jury found in favor of defendant on strict liability design defect but for plaintiff on negligent design defect.  The problem is under Missouri law, both causes of action require a finding that the product was in a defective condition unreasonably dangerous.  Despite that, the Eighth Circuit was unwilling to find the verdict inconsistent or excessive. 

While both causes of action require a defective condition unreasonably dangerous – in fact the exact same language was used in both jury instructions — there are differences between the claims.  Which is where the court focused.  In strict liability the product must be unreasonably dangerous “when put to a reasonably anticipated use.”  Id. at *2.  Negligence does not carry the same use requirement but rather requires a finding that the manufacturer failed to use ordinary care to design a reasonably safe product.  Id.  The Eighth Circuit found it was possible for the jury to have concluded there was proof the product was not used in a reasonably anticipated manner and therefore find for defendant on strict liability and against defendant on negligence which does not require the same element.  Id.    

Defendant argued that whether the product was put to a “reasonably anticipated use” was undisputed and should have been considered functionally stipulated.  Defendant did not challenge reasonable use in its closing argument, but that was not enough for the appellate court.  “The absence of contrary argument by [defendant] did not create a constructive stipulation obviating the necessity of a jury finding on an element of [plaintiff’s] claim.”  Id. at *3.  The court was also disinclined to defendant’s argument because at trial defendant offered evidence that the device was implanted not in the “optimal position.”  So, evidence of medical misuse of the device ironically came back to disadvantage the defendant.  Having introduced the evidence, the defendant could not complain on appeal that the jury might have agreed.      

While the inconsistent verdict was the primary issue on appeal, defendant also challenged whether plaintiff had proven that defendant breached its duty of care arguing that plaintiff’s expert evidence only addressed that all metal-on-metal implants were defectively designed not whether defendant’s specific implant was so.  Id. at *4.  The court found defendant’s definition of the “class” of products too narrow.  The class was all hip implants and plaintiff presented evidence regarding defendant’s choice to design its device as metal-on-metal.  And the jury had the ability to weigh that evidence and decide whether that choice was reasonable or negligent.  Id.  The same was true of evidence regarding defendant’s choice of the implant cup size.   

Finally, the court was unwilling to find the verdict excessive comparing the facts of this case to other cases involving this type of product.  The verdict here was larger, but the court found plaintiff presented evidence of her severe injuries and deferred to the jury judgement on the proper compensation. 

We are still scratching our heads a bit on the split verdict that seems to suggest the device was both defective and not.  Perhaps this will be fodder for a deeper dive.  But that will have to wait for 2023.