Quick – when’s the last time that a federal court of appeals certified a pro-plaintiff ruling to the relevant state supreme court?
We don’t remember either.
It sure didn’t happen in Shears v. Ethicon, Inc., ___ F.4th ___, 2023 WL 2780348 (4th Cir. April 5, 2023), a pelvic mesh case where the defendant won a jury verdict on negligence after obtaining summary judgment on design defect because the plaintiff couldn’t meet the current West Virginia standard for proof of alternative design. The validity of what the Fourth Circuit called an “Elimination Mandate” has now been certified to the West Virginia Supreme Court of Appeals.
Here’s more than bit of history as background. Back in 2015, in the then-Ethicon mesh MDL, we blogged about a ridiculous procedural decision, Mullins v. Ethicon, Inc., 117 F. Supp.3d 810 (S.D.W. Va. 2015), attempting to consolidate no fewer than thirty-seven West Virginia mesh plaintiffs for a single trial. That never happened. Before that lumbering attempt to bludgeon the defendant into settling could get off the ground, the West Virginia Supreme Court of Appeals issued pattern product liability jury instructions that, while non-binding, “authoritative[ly]” stated what the drafters (including the Chief Justice) believed were the proper elements of that state’s product liability law. Mullins v. Ethicon, Inc., 2016 WL 7197441, at *2 (S.D.W. Va. Dec. 9, 2016).
For once, the MDL court opted not to ignore relevant state law. Id. at *3. In particular, these instructions defined the alternative design requirement for design defect claims:
There are many designs which, although they may eliminate a particular risk, are not practicable to produce. To prove that a design is defective, [name of plaintiff] must prove that there was an alternative, feasible design that eliminated the risk that injured [him/her].
W. Va. P.J.I. §411 (emphasis added). The bolded text is what the Fourth Circuit called the “Elimination Mandate.”
Instead, “while the PJI is certainly not binding precedent in the way a published opinion is, the persuasive force behind the PJI in helping me predict how the West Virginia Supreme Court would rule on this issue is substantial.” Mullins, 2016 WL 7197441, at *3. Also rejected was plaintiffs’ rather absurd argument that substantive West Virginia law was different in “consolidated” cases. Id. Thus, Mullins concluded, “in a West Virginia strict liability design defect products liability case, a plaintiff must prove that there was an alternative, feasible design − existing at the time of the product’s manufacture − that would have eliminated the risk that injured the plaintiff.” Id. at *5.
The plaintiff in Shears was one of the 37 consolidated Mullins plaintiffs. 2023 WL 2780348, at *2 (suit filed in October, 2008). Since §411 defined alternative design in terms of “the risk that injured” the particular plaintiff, this requirement of plaintiff-specific defect evidence apparently torpedoed the idea of a single consolidated Mullins trial. Instead, after those cases languished in the MDL for four more years, in November, 2020, the MDL judge ordered them transferred back to the courts where the plaintiffs originally filed them. Id. at *4
After remand, in 2022, the plaintiffs in Shears had their design defect claim dismissed because their expert testified only that the alternative designs usually alleged in mesh cases (more about that, here and here) could only “reduce,” but not “eliminate” the risks of the particular injuries Ms. Shears alleged – which did not meet West Virginia’s alternative design requirement. Id. After that, the Shears case became one of the string of Ethicon trial victories that we blogged about last year. Id. at *5.
Now the Fourth Circuit has decided that it doesn’t like the “Elimination Mandate” and is hoping that the West Virginia high court will disavow its own pattern jury instructions.
[W]e are satisfied that “there is no controlling appellate decision, Constitutional provision or statute” of the State of West Virginia that resolves the question of whether Section 411 sets forth a correct statement of law − nor is there sufficient authority that would permit us to reasonably guess how the Supreme Court of Appeals of West Virginia might resolve that question.
Id. (citation omitted). That conclusion, of course, required Shears to discount the pattern jury instructions themselves as an accurate statement of West Virginia law. Not only that, but Spears acted sua sponte. Neither side to this appeal (unlike when the case was in the MDL, when the plaintiff requested certification, 2016 WL 7197441, at *1, 5) had requested certification. 2023 WL 2780348, at *5.
According to Shears, the plaintiffs “aptly explained in their objections to Section 411 of the PJI,” in that “no portion of that Section’s recitation of the standard of proof for a strict liability design defect claim finds direct support in controlling West Virginia law.” Id. at *6. That the pattern jury instructions (unlike those in other states, like Pennsylvania) “are owned and published by − indeed “backed by the blessing of” − the Supreme Court of Appeals, and by all accounts ‘have gone through multiple edits and revisions after extensive research and editing,’” did not sway the Fourth Circuit to follow them. Id. Instead:
It is of importance to us, however, that at no point has the Supreme Court of Appeals definitively stated − in a signed, published opinion − one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product.
Id. at *7 (citation and quotation marks omitted). While controlling West Virginia precedent “can only be read to require the production of evidence on reasonable alternative design, to gauge what ‘should have been,’” id. at *8 nonetheless also certified that question, too: “whether proof of an alternative, feasible design is an essential element of a design defect claim.” Id. at
[W]hether a plaintiff alleging a West Virginia strict liability design defect claim is required to prove the existence of an alternative, feasible product design − existing at the time of the subject product’s manufacture − in order to establish that the product was not reasonably safe for its intended use. And if so, whether the alternative, feasible product design must eliminate the risk of the harm suffered by the plaintiff, or whether a reduction of that risk is sufficient.
Id. at *10.
If one ignores the pattern jury instructions – a big if – the existence, or not, of the so-called “Elimination Mandate” under West Virginia law looks like an open question. However, that does not excuse the certification of the existence of that state’s alternative design requirement, as that is settled West Virginia law. E.g., Church v. Wesson, 385 S.E.2d 393, 396 (W.Va. 1989) (plaintiff “failed to establish a prima facie right of recovery” because the purported alternative design “was not feasible when the [product] was manufactured”); Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017) (“a plaintiff in a design case, for all practical purposes, must identify an alternative design”) (applying West Virginia law). Other than hoping that the current West Virginia Supreme Court of Appeals would change existing law, there is no excuse for certifying the first sentence of the above-quoted question.
Now we wait to see what the West Virginia court does.
In the meantime, thanks to the MDL, the Spears case has been pending for almost a decade and is nowhere near being concluded.