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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.      

Continue Reading Eighth Circuit Upholds Jury Verdict for Plaintiff in Hip Implant Case

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We have had occasion over the years to opine on cases involving allegations against sales representatives who are present in the operating room—a not uncommon practice when medical devices are being used.  While the practice is not uncommon, what is rare are instances where a sales representative participates in the surgery.  Rare, but not non-existent.  Where the line is drawn between presence and participation, and possibility liability or not, is extremely fact sensitive.  And as the court in Owens v. Boston SCI Corp. concluded, in the absence of facts, conclusory allegations of participation are not enough. 2022 U.S. DIST. Lexis 212427, *7 (E.D. Mo. Nov. 23, 2022).

 Plaintiff underwent surgery involving implantation of a pelvic mesh medical device.  Plaintiff alleged complications following surgery and filed a lawsuit against the manufacturer alleging design defects and against one of the manufacturer’s sales representatives for failure to warn both plaintiff’s surgeon and plaintiff.  The manufacturer removed the case to federal court alleging the sales representative, who was not diverse to plaintiff, was fraudulently joined.  Plaintiff moved to remand.

Continue Reading Sales Representative’s Presence in Operating Room Not Enough to Beat Fraudulent Joinder

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The same Missouri Supreme Court that couldn’t be bothered to review a 22-plaintiff consolidation that resulted in a ten-figure verdict in a talc case saw fit to review a defense verdict in a pelvic mesh case.  One wonders where justice stands among that court’s priorities.  At least the verdict was affirmed – if only barely,

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It’s not exactly Groundhog Day, but we are sticking with personal jurisdiction.  Today we’re sliding two states over to Missouri.  Gateway to the West.  Home to Maya Angelou, Mark Twain, Dick Van Dyke, and John Goodman.  Birthplace of the waffle cone and home to the largest beer producing plant in the country.  Unlike Indiana, Missouri

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As consumers, and connoisseurs, of personal jurisdiction precedent, we write today to consider the latest jurisdictional mess that has arisen, this time in talc litigation.  Two courts, deciding the same jurisdictional issue on the same set of facts in the same week, have reached diametrically opposed decisions.  The current contretemps concerns “Shimmer” – a minor

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Missouri is central to America – geographically, culturally, and politically. Some of our greatest literature came from Missouri authors (Twain, Eliot, Angelou). Media figures as unifying as Walter Cronkite and as divisive as Rush Limbaugh at one time called Missouri home. American music wouldn’t be the same without tenor saxophonist Coleman Hawkins (listen to the