Cox et al v. KLS Martin, L.P.
Filing
179
ORDER AND OPINION entered by Judge Ortrie D. Smith denying 162 MOTION for order Remittitur, denying 164 MOTION for new trial, and denying 166 MOTION for judgment as a matter of law (Renewed). (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHAD COX and COURTNEY COX,
Individually and as Natural Guardians
of JEREMIAH COX,
Plaintiffs,
vs.
KLS MARTIN, L.P.,
Defendant.
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Case No. 10-1204-CV-W-ODS
ORDER AND OPINION (1) DENYING DEFENDANT’S RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW; (2) DENYING DEFENDANT’S MOTION FOR
NEW TRIAL; AND (3) DENYING DEFENDANT’S MOTION FOR REMITTITUR
Following a jury trial and entry of an adverse judgment, Defendant KLS Martin,
L.P., filed a Renewed Motion for Judgment as a Matter of Law (Doc. 166), Motion for New
Trial (Doc. 164), and Motion for Remittitur (Doc. 162). For the following reasons, the
Motions are denied.
I. BACKGROUND
Plaintiff Jeremiah Cox was born with a severe case of Pierre Robins Sequence, a
rare disorder in which the infant’s lower jaw is underdeveloped. Virender K. Singhal,
M.D., performed a bilateral mandibular distraction procedure to correct the disorder.
Mandibular distraction involves performing osteotomies (cutting through the bone)
on both sides of the patient’s mandible behind the molars and securing a mechanical
intraoral distraction device to both sides of each osteotomy site. The distracters are
secured by attaching the distractors’ bone fixation plates to the mandible through the use
of bone screws. By turning an activation mechanism, each distractor slowly separates
the bone sections. This allows for the formation of new bone in the space created,
lengthening the mandible.
The distractor’s bone fixation plates (screwed onto the mandible) are attached to a
rectangular post located on the distractor cylinder body through an extremely tight fit
(called a “friction fit”) and welding. There were two plates on the right side of Jeremiah’s
mandible—a fixed distal plate and a movable proximal plate. The distraction devices
were manufactured by Defendant KLS.
Approximately 9 days after surgery, the distal fixation plate on the right side
separated from the distractor body at the post-plate welded connection. Chad and
Courtney Cox, as natural guardians of Jeremiah Cox, sued KLS.
On April 18, 2013, the jury returned a verdict for Plaintiffs in the amount of
$850,000 on the theories of design defect and failure to warn. Defendant has now filed a
renewed Motion for Judgment as a Matter of law, Motion for New Trial, and Motion for
Remittitur. The Court will address each in turn.
II. DISCUSSION
A, Judgment as a Matter of Law
1. Legal Standard
When considering a motion for judgment as a matter of law, all factual issues are
construed in the light most favorable to the verdict. Marez v. Saint-Gobain Containers,
Inc., 688 F.3d 958, 963 (8th Cir. 2012). The motion should then be granted only if there
was no legally sufficient basis for the verdict. E.g., Luckert v. Dodge County, 684 F.3d
808, 817 (8th Cir. 2012) (citing Fed. R. Civ. P. 50).
2. Legal Analysis
A strict liability claim under Missouri law requires proof of the following elements:
“(1) the defendant sold a product in the course of its business; (2) the product was then in
a defective condition, unreasonably dangerous when put to a reasonably anticipated use;
(3) the product was used in a manner reasonably anticipated; and (4) plaintiff was
damaged as a direct result of the defective condition that existed when the product was
sold.” Engel v. Corrigan Company- Mechanical Contractors, Inc., a Division of Corrigan
Brothers, Inc., 148 S.W.3d 28, 30 (Mo. Ct. App. 2004). A product may be “unreasonably
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dangerous” due to its manufacture, its design, or a failure to warn. Peters v. Johnson &
Johnson Products, Inc., 783 S.W.2d 442, 444 (Mo. Ct. App. 1990). In this case, Plaintiffs
have alleged strict liability claims based on both a design defect and a failure to warn.
a. Unreasonably Dangerous
First, Defendant asserts that judgment as a matter of law is appropriate because
Plaintiffs failed to present evidence that the device was unreasonably dangerous. The
Court disagrees.
The Missouri Supreme Court has held that “[u]nder our model of strict tort liability
the concept of unreasonably danger [sic], which is determinative of whether a product is
defective in a design case, is presented to the jury as an ultimate issues without further
discussion.” Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378 (Mo. 1986)
(en banc). “The jury gives this concept content by applying their collective intelligence
and experience to the broad evidentiary spectrum of facts and circumstances presented
by the parties.” Id.
In this case, Defendant argues there was no evidence presented to the jury that
the device was unreasonably dangerous because Dr. Dobbs’ testimony was
inadmissible. The Court rejected this argument in denying KLS’ pre-trial motion to strike
Dr. Dobb’s testimony, Doc.76, pp. 3-8, and again declined to strike Dr. Dobb’s testimony
at the close of the parties’ evidence. Tr. Vol. IV (Doc. 157), 683:1-6. The Court
discerns no reason to change this ruling.1 Defendant tried to convince the jury the
device was not unreasonably dangerous because (1) its benefit outweighed the risk, (2)
there was a low medical device incident rate, (3) and there was no permanent injury,
lengthy recovery, severe pain, or risk of life or limb. However, the jury rejected those
arguments and was permitted to do so. Although there was evidence to support
Defendant’s position that the device was not unreasonably dangerous, there was also
evidence to the contrary—the device broke, caused a second surgery, and prolonged the
1
Defendant also argues that the strict liability failure to warn claim fails for lack of
admissible evidence of a design defect because Dr. Dobb’s testimony is inadmissible.
Once again, Defendant’s argument is not new and the Court adheres to its prior ruling.
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lengthy and painful distraction process—and a legitimate factual dispute should not be
resolved as a matter of law. E.g., Billingsley v. City of Omaha, 277 F.3d 990, 993 (8th
Cir. 2002).
b. Adequacy of the Warning
Next, Defendant argues the strict liability failure to warn claim fails for lack of
competent evidence concerning the adequacy of the warning. Specifically, Defendant
faults Plaintiffs for not presenting testimony of a physician or other qualified expert
regarding whether the warning provided by KLS in the product brochure was adequate to
inform a skilled physician of the risk that the device might be damaged if care was not
taken during the manipulation process. Defendant contends that under Missouri law, a
failure to warn claim requires admissible expert testimony that additional or other
warnings might have altered the behavior of the plaintiff. (Doc. 167), at 18. Defendants
cite to Davidson v. Besser Co., 70 F. Supp. 2d 1020, 1023 (E.D. Mo. 1999), in which the
court stated “[a] failure to warn claim requires admissible expert testimony that additional
or other warnings might have altered the behavior of the plaintiff.” However, as Plaintiffs
correctly point out, the Davidson decision merely applies the rule—that expert testimony
is required—in cases involving complex issues outside the common knowledge of jurors:
. . . Whether or not the defendant’s block-making machine was
unreasonably dangerous, because it lacked an interlock safety device, is a
conclusion that is sufficiently technical and complex to be outside the
common knowledge or experience of a jury; expert testimony is necessary
to establish liability in such a case. Because the Court has prohibited Mr.
Kelsey from testifying that the block-making machine was defective without
the interlock safety device, plaintiff’s case lacks legally sufficient evidence
on those claims and defendant is entitled to summary judgment on them.
Plaintiff’s claims based upon insufficient warnings are subject to the
same principles. A failure to warn claim requires admissible expert
testimony that additional or other warnings might have altered the behavior
of the plaintiff. Jaurequi [v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir.
1999).] . . .
70 F. Supp. 2d at 1023 (footnote omitted) (citations omitted) (emphasis added).
Under Missouri law, expert testimony is not required in all failure to warn claims.
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“The necessity of expert testimony in a failure to warn claim turns on the complexity of the
subject matter.” Menz v. New Holland North America, Inc., 507 F.3d 1107, 1111
(applying Missouri law). See also American Auto Ins. Co. v. Omega Flex, Inc., No.
4:11-DV-00305-AGF, 2013 WL 2628658 (E.D. Mo. June 11, 2013) (“[I]n a case such as
this, involving technical and complex processes whose properties are outside the
common knowledge or experience of a jury, ‘[a] failure to warn claim requires admissible
expert testimony that additional or other warnings might have altered the behavior of the
plaintiff.’” (quoting Davidson v. Besser Co., 70 F. Sup. 2d 1020, 1023 (E.D. Mo. 1999));
Bryant v. Laiko Int’l Co., No. 1:05-CV-000161-ERW (E.D. Mo. Sept. 26, 2006) (“On both
the question of design, and failure to warn, Missouri courts have always allowed, and
often required expert testimony. Whether courts have held expert testimony is required
usually turns on the complexity of the subject matter, or whether the circumstances
clearly show that the incident could not have occurred absent a defect.”). Further,
“courts must guard against invading the province of the jury on a question which the jury
was entirely capable of answering without the benefit of expert opinion.” Rottlund Co. v.
Pinnacle Corp., 452 F.3d 726, 732 (8th Cir. 2006) (quoting Robertson v. Norton Co., 148
F.3d 905, 908 (8th Cir. 1998)).
In this case, the jury heard testimony from Dr. Dobbs, Mr. Waizenegger, and Dr.
Singhal regarding the properties and use of the device. The jury also heard testimony
regarding KLS’ product brochure, which set out KLS’ instructions for using the device.
Dr. Singhal also testified regarding KLS’ warning and instructions. Finally, Dr. Singhal
testified that he knew of and heeded KLS’ warning regarding the danger of damage to the
device during the bending procedure, but was never instructed of such danger during the
cutting process. No further expert testimony was required in this case. The jury was
capable of determining whether KLS’ warning was adequate to inform Dr. Singhal that the
device may be damaged if care was not taken during the manipulation process.
c. Causation
Defendant contends Plaintiffs did not present sufficient evidence on the strict
liability failure to warn claim to support the jury’s verdict on the issue of causation.
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To prevail on a strict liability failure to warn claim, a plaintiff must (1) establish that
the lack of an adequate warning caused the plaintiff’s injuries; and (2) demonstrate that a
warning would have altered the behavior of the injured person. Smith v. Brown &
Williamson Tobacco Corp., 275 S.W.3d 748, 785 (Mo. Ct. App. W.D. 2008). Defendant
attacks the second component. There is a presumption that a warning would be heeded,
if there is evidence that a plaintiff did not already know of the danger. Tune v. Synergy
Gas Corp., 883 S.W.2d 10, 14 (Mo. 1994) (en banc). However, “[i]t is not enough for the
defendant to show that the plaintiff knew of the general dangers associated with the
activity; rather the defendant must show that the plaintiff knew of the specific danger that
caused the injury.” Smith, 275 S.W.3d at 785 (emphasis added).
Defendant argues that Dr. Singhal knew about the specific risk of bending the
post-plate connection of the device and therefore the presumption that the warning would
have been heeded by Dr. Singhal was rebutted. In response to a question regarding the
instructions in the product insert, Dr. Singhal stated:
A: Here I said, “Yes. They have told us from the very beginning that if you
bend a plate excessively, you would break them or snap them off, so we are
very aware of it.”
Q: So you knew not to bend the plate excessively on such a small
distractor?
A: That’s true.
Tr. Vol. II (Doc. 155), 344:20-25. However, Plaintiff argues, Dr. Singhal was testifying
specifically in reference to the “Caution” contained in the product insert at Step 6 of the
instructions:
6) The micro plates can be bent to ensure good bone contact. * CAUTION:
extreme care must be taken to protect the welds during the bending
procedure. Place one plate bender (25-486-13) next to weld and use other
bender to modify the plate.
Plaintiff’s Exhibit 6. Dr. Singhal may have been aware of the general danger to the
device—that the welds could break or snap off if the plates were bending excessively
during the bending procedure before implantation—but the testimony does not
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demonstrate that Dr. Singhal was clearly aware of the specific danger that the welds
could fail after implantation if the plates were inadvertently bent during the cutting
procedure. The Court finds as a matter of law that Plaintiffs presented sufficient
evidence to support the jury’s verdict. Further, the Court sufficiently addressed this
argument in its Order (Doc. 77), p. 3, and the Court’s ruling stands.
d. Dr. Singhal’s Use of the Device
Next, Defendant argues the strict liability claim fails because there was no
evidence that Dr. Singhal used the device properly. The Court addressed this issue
before trial and adheres to its ruling. The Court stated, “the warnings and instructions
were not clear” and “even if Dr. Singhal misused the device by bending the distal bone
plate without plate benders during the cutting procedure, a reasonable jury could
conclude this misuse was objectively foreseeable to KLS in light of the instructions in the
brochure (only warning to protect the weld during the bending procedure), the presence
of a KLS representative during every or most of Dr. Singhal’s surgeries, and Dr. Singhal’s
testimony that he followed the same sequence in modifying the device during every
surgery.” Doc. 77, p. 4.
e. Economic Damages
Finally, Defendant contends that Plaintiffs failed to present submissible evidence
concerning the amount of economic damages resulting from the separation and
replacement of the device. As a preliminary matter, there is no basis for determining
what amount, if any, the jury included for economic damages in its award. In awarding
damage, the jury was instructed as follows: “In considering the amount of damages, you
may consider the costs for medical care as well as the pain and suffering experienced by
Jeremiah Cox.” See Doc. 150, p. 18. In accordance with this instruction, the jury
awarded $850,000 to Plaintiffs. Neither the jury’s instruction nor the verdict form
itemized the economic and non-economic damages encompassed in the award.
In this case, the total amount of medical expenses incurred by Jeremiah from June
15th to June 29th was $87,393.55. Tr. Vol. I (Doc. 154), 128:9-141:5. Dr. Singhal
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testified that all of the expenses incurred were medically necessary. Tr. Vol. II, 315:9-13.
Dr. Singhal also testified that the device’s failure extended Jeremiah’s hospital stay,
extended the distraction process, and required an additional surgery to be performed on
J.C. Tr. Vol. II, 315:14-316:5, 317:15-19. The Court concludes that Plaintiffs presented
competent evidence that (1) all the medical expenses incurred by Jeremiah during his
hospital stay were medically necessary and (2) J.C.’s hospital stay was extended (and
additional treatment was required) as a result of KLS’ device failing. Defendant’s
renewed Motion for Judgment as a Matter of Law is denied in its entirety.
B. New Trial
A new trial may be granted when the first trial results in a miscarriage of justice,
either because (1) the verdict is against the weight of the evidence, (2) the damage award
is excessive, or (3) legal errors occurred during the trial. E.g., Trickey v. Kaman Indus.
Tech. Corp., 705 F.3d 788, 807 (8th Cir. 2013). In determining whether a verdict is
against the weight of the evidence, the Court may rely on its own interpretation of the
evidence but cannot set aside the jury’s verdict simply because the Court believes other
outcomes are more appropriate. Harris v. Secretary, U.S. Dep’t of Army, 119 F.3d 1313,
1318 (8th Cir. 1997).
1. Liability
First, in its Motion for New Trial, Defendant argues that the jury’s verdict as to
liability is against the weight of the evidence because (1) the device was not
unreasonably dangerous; (2) the device was not defectively designed; (3) Plaintiffs failed
to establish causation on the failure to warn claim; and (4) Dr. Singhal’s misuse of the
device was not reasonably anticipated. These arguments have already been addressed
and rejected when discussing Defendant’s Motion for Judgment as a Matter of Law and
the Court will not engage in further discussion.
2. Argument and Questioning by Plaintiffs
Next, Defendant argues that Plaintiffs’ counsel conducted improper argument and
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questioning, which denied KLS a fair trial. The Court disagrees.
a. Opening Statement
Defendant makes several arguments that comments made during Plaintiffs’
opening statement were improper. The grounds asserted for objecting to Plaintiffs’
opening statement were apparent at the time the opening statement was delivered; thus,
Defendant’s failure to object during the opening statement waives the issue on appeal,
see McKnight, 36 F.3d 1396, 1408 (1994), unless the Court committed plain error in
allowing the commentary in Plaintiffs’ opening statement.
Under plain error review, the Eight Circuit will only reverse if there is “1) error 2)
that is plain and 3) affects the defendant’s substantial rights” and, “[i]n addition, the error
must seriously affect ‘the fairness, integrity or public reputation of public proceedings.’”
United States v. Robinson, 439 F.3d 777, 780 (8th Cir. 2006) (quoting United States v.
Olano, 507 U.S 725, 732 (1993)). In order to “affect substantial rights,” “the error must
have been prejudicial: It must have affected the outcome of the district court
proceedings.” Olano, 705 U.S. at 734-35.
In this case, Defendant argues Plaintiffs’ counsel improperly referenced the
emotions that Chad and Courtney Cox felt prior to Jeremiah’s first surgery: “worry,” “very
raw,” “fear,” “dread,” “longing for normalcy.” Any possible effect on the jury was directly
addressed by the Court’s use of Jury Instruction No. 16, stating that “[a]ny evidence of
Chad and Courtney Cox’s emotional distress is withdrawn from the case and you are not
to consider such evidence in arriving at your verdict.” Doc. 150.
Next, Defendant argues that it Plaintiff’s opening statement included gruesome
details regarding the surgery. The passages Defendant quotes are not particularly
gruesome,2 and an accurate description of the surgery was relevant in this case.
Defendant also argues that Plaintiffs’ counsel tainted the jury by improperly
mentioning that Jeremiah had “other” health problems. The Court disagrees.
Jeremiah’s Pierre Robins Sequence caused him to have the device implants and was
2
Tr. Vol. I, 66:17-67:2; Tr. Vol. I, 68:24-69:5; Tr. Vol. I, 69:19-24
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relevant to the case.
Finally, Defendant argues that Plaintiff improperly suggested that KLS should have
sued Dr. Singhal and Children’s Mercy. Plaintiffs’ attorney stated:
There are only two parties to this case. The Coxes have not sued Children’s
Mercy, nor have they sued Dr. Singhal. They’ve not received any settlement from
either of those two parties, and KLS has not added Dr. Singhal or Children’s Mercy
to this lawsuit.
Tr. Vol. I, p. 72, ln. 6-9. The Court finds that no such suggestion was made, and even if
it was, it did not deny KLS a fair trial. The Court concludes that the comments in
Plaintiffs’ opening statement did not seriously affect the fairness or integrity of the trial and
thus did not constitute plain error.
b. Plaintiffs’ Counsel’s Questioning
The Court rejects Defendant’s arguments that Plaintiffs’ counsel’s questioning
poisoned the jury against KLS. First, Defendant objects to counsel’s questioning of
Jeremiah’s parents about how they felt at the time of their son’s surgery. This argument
is similar to the argument Defendants made regarding Plaintiffs’ opening statement and
the argument has been rejected—any possible effect on the jury was directly addressed
by the Court’s use of Jury Instruction No. 16.
Next, Defendant argues Plaintiff should not have inquired from various witnesses
whether KLS had ever contacted Dr. Singhal after the surgery to inform him that he had
damaged the device. The Court addressed this argument during the trial and ruled that
the evidence was relevant. Tr. Vol.. II, p. 313, ln. 2-16. The Court adheres to its prior
ruling.
Defendant’s next argument involves questions as to whether KLS had contacted
the Plaintiffs to check on Jeremiah, or to apologize to the Plaintiffs for what happened.
Defendant did not object to this questioning at trial and the Court finds no plain error. Tr.
I, 119:5-13, 241:4-9.
Next, Defendant argues that Plaintiffs’ counsel improperly insinuated that KLS
tampered with evidence, falsified reports, and hid evidence. Doc. 165, p. 14. The Court
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does not find that the line of questioning cited by Defendant poisoned the jury. Plaintiffs
contend the questioning—asking about the chain of custody, asking about the existence
of documents—does not imply evidence tampering. The Court agrees. With respect to
the existence of emails, Plaintiffs argue that those questions informed the jury why certain
types of potential evidence were not presented for its consideration. Plaintiffs argue, and
the Court agrees, that if the jury found it remarkable that KLS’ chief device designer does
not communicate with his co-workers via email, then they were free to consider that fact in
judging the credibility of that witness.
Finally, Defendant argues Plaintiffs improperly suggested that the jury could hold
KLS liable for not sharpening the plate cutters at Children’s Mercy. Defendant contends
that the questions regarding the plate cutters supplied by KLS were irrelevant. However,
Plaintiffs correctly point out that the type and condition of instruments provided by KLS is
relevant to the unreasonably dangerous nature of the device intended to be modified, and
to the issue of whether the device was used in a manner that was reasonably anticipated
by KLS. The Court denies Defendant’s Motion for a New Trial with respect to Plaintiffs’
counsel’s questioning.
c. Plaintiffs’ Counsel’s Purported Abuse of Witnesses
Next, Defendant contends Plaintiffs’ counsel “repeatedly engaged in a degree of
theatrics that was prejudicial to KLS’ ability to receive a fair trial.” Doc. 165, p. 15.
Specifically, Defendant argues “Mr. Bartle frequently shouted at witnesses, made
dramatic gestures with his body, and paced in front of the jury box.” Id. Plaintiffs’
counsel’s conduct does not rise to the level of prejudicing the jury against Defendant and
a new trial is not warranted. The Court sustained defense counsel’s objections during
the trial and gave Plaintiffs’ counsel curative instructions. See Tr. Vol. I, 209:22-24; Tr. II,
287:24-25-288:1; Tr. III, 457:20-22.
d. Plaintiffs’ Closing Argument
Finally, Defendant argues that Plaintiffs’ closing argument contained improper
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argument because Plaintiffs’ counsel: (1) made an “empty chair” argument, (2) made a
reference that KLS did not accept responsibility, (3) argued that KLS’ failed to tell Dr.
Singhal that he damaged the device, (4) implied that the plate cutters were not
maintained properly, (5) referenced a lack of emails of the design of the product and
implied that KLS falsified its MRD reports, and (6) told the jury that KLS can afford an
adverse verdict. Defense counsel failed to object to the comments during Plaintiffs’
closing argument, which means a new trial is not justified in the absence of plain error.
See United States v. Lawson, 483 F.2d 535, 538 (8th Cir. 1973); see also Thomure v.
Truck Ins. Exch., 781 F.2d 141, 143 (8th Cir. 1986) (“When statements in a closing
argument are not objected to at trial, we may only review them on a plain error
standard.”).
In this case, none of the comments made by Plaintiffs’ counsel during closing
argument were “plainly unwarranted and clearly injurious.” Billingsley v. City of Omaha,
277 F.3d 990, 997 (8th Cir. 2002) (quoting Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir.
1986)) (“A new trial should be granted where the improper conduct of counsel in closing
argument are ‘plainly unwarranted and clearly injurious.’”). Moreover, the Court
admonished the jury—at the beginning of trial and prior to the closing arguments—that
statements made by the attorneys are not evidence. The admonition remedied any
prejudice incurred by Plaintiffs’ counsel’s statements in closing argument. See
Billingsley, 277 F.3d at 997. Accordingly, the statements made by Plaintiffs’ counsel
during closing argument do not warrant a new trial.
3. Request of Damages in the Initial Closing Argument
Defendant contends a new trial on the issue of damages is warranted because
Plaintiffs’ counsel did not mention damages in the initial portion of his closing argument.
Under Missouri law, “when a plaintiff does not raise the issue of damages in the opening
portion of closing argument, he cannot address that issue in the rebuttal portion of his
argument.” Shapiro v. Kravitz, 754 S.W.2d 44, 454 (Mo. Ct. App. 1988).
In this case, Plaintiffs’ counsel concluded his opening portion of closing argument
and reserved the rest of his time. Before Defendant’s counsel delivered his closing
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argument, the following bench conference was held:
MR. LUNNY: My understanding of Missouri law is if they claim damages,
they are [required] to inject that damage amount in the beginning of their
closing argument. Their rebuttal section is allowed to be preserved purely
for rebuttal of what KLS would present. So if that is the Court’s ruling, I’m
asking the Court if it would follow Missouri law in that case, I won’t talk about
damages, because they are not entitled to provide economic damages
suffered to the jury because he failed to do that in his closing.
MR. BARTLE: I don’t know if there is such a rule. I have one minute left in
my first half of my remarks, and I can certainly tell the jury.
THE COURT: I understand Greg correctly stated the law in Missouri. If
you don’t talk about damages in the first part giving him an opportunity to
rebut that argument in his part, then you can’t talk about it in the final part.
MR. BARTLE: Can I use my one minute, Judge?
MR. LUNNY: He finished his initial presentation.
MR. BARTLE: I have one minute left.
THE COURT: All right. I’m going to let him do it because I want justice to
happen in this courtroom and I think that you should have and I’ll give you
the opportunity to do that now and you can rebut it.
Tr. Vol. IV, p. 691. Plaintiffs’ counsel then finished the remaining portion of his initial
closing argument, which was followed by defense counsel’s closing argument. The
Court concludes that the Plaintiffs’ counsel complied with the Missouri rule that a plaintiff
cannot raise an issue for the first time in the rebuttal. Before Defendant’s counsel
commenced his closing argument, Plaintiffs’ counsel addressed the issue of damages.
4. Venireperson #12
Defendant argues that venireperson # 12, Alisa Woska, should have been stricken
for cause because of her inability to be impartial.
“The district court is given broad discretion in determining whether to strike jurors
for cause because it is in the best position to assess the demeanor and credibility of the
prospective jurors.” U.S. v. Elliot, 89 F.3d 1360, 1365 (8th Cir. 1996).
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In this case, during voir dire Ms. Woska initially said she felt she may take Plaintiffs’
side because she has a child and because she can be very sympathetic. However, she
also said she could be fair. The Court followed up and asked Ms. Woska whether she
could follow the instructions and the law that would require her to come to a verdict based
solely on the evidence, common sense, and the laws, and would not allow her
sympathies or own likes and dislikes influence her. Tr. Vol. I, 53:8-14. Ms. Woska
answered in the affirmative. The undersigned evaluated Ms. Woska’s credibility and
concluded she would be able to set aside any prejudices or sympathies. Defendant has
failed to meet its burden of proving impartiality. Accordingly, Plaintiff’s motion for new
trial is denied with respect to Ms. Woska’s impartiality. See United States v. Wright, 340
F.3d 724, 733 (8th Cir. 2003) (affirming district court’s refusal to strike juror for cause
when juror expressed initial doubt over her ability to follow the court’s instructions before
eventually stating that she could decide the case fairly and impartially).
5. Learned Intermediary Defense
Defendant contends the Court “refused” to give Defendant’s instruction on the
learned intermediary defense and Defendant was “forced” to abandon the defense.
Doc. 165, p. 25. During a discussion outside of the presence of the jury, the Court
proposed a re-drafted version of the learned intermediary defense instruction because
the Court believed the proposed instruction was very confusing, difficult to read, difficult to
follow, and too fact intensive to use as an instruction for the jury. Tr. Vol. III (Doc. 156),
450:5-8. Then, Defendant’s counsel stated “If the Court is inclined to give No. 16, then
we’ll have to discuss this because, frankly, we might just decide not to do it at all . . . .” Tr.
Vol. III, 451:1-5. The Court allowed defense counsel to think about it overnight. Tr. Vol.
III, 603:10-17. The following morning defense counsel informed the Court that the
decision was made to drop the learned intermediary defense. Tr. IV, 606:7-9. In no
way was Defendant “forced” to abandon the learned intermediary defense. Defendant’s
proposed instruction was confusing and the Court offered an instruction it believed was
clearer for the jury to understand; at that point, Defendant opted not to pursue it further.
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6. Verdict Form Reference to Chad and Courtney Cox
Defendant complains that Jury Instruction 15 improperly referenced Chad and
Courtney Cox. Instruction No. 15 stated:
If you find in favor of the [sic] Chad and Courtney Cox as natural guardians
of Jeremiah Cox on Instruction No. 13 or 14 then you must award such sum
as you believe will fairly and justly compensate for any damages you
believe were sustained as a direct result of the failure of the distraction
device. In considering the amount of damages, you may consider the
costs for medical care as well as the pain and suffering experienced by
Jeremiah Cox.
Doc. 150, p. 18.
Defendant contends that the damages instruction does not state that the jury may
only consider the medical expenses and Jeremiah’s pain and suffering. Defendant
argues that the instruction confused the jury as to the measure of damages recoverable
by law and that the jury was not instructed as to the significance of the phrase “as natural
guardians of Jeremiah.” Defendant’s argument is without merit. First, other instructions
referenced Chad and Courtney Cox as guardians (e.g., Instruction No. 14), and the jury
was instructed that they were suing “on behalf of their child Jeremiah.” Doc. 150, p. 1.
Further, Instruction 16 stated “[a]ny evidence of Chad and Courtney Cox’s emotional
distress is withdrawn from the case and you are not to consider such evidence in arriving
at your verdict.” Doc. 150, p. 19.
C. Remittitur
Defendant’s Motion for Remittitur argues the jury’s damage award of $850,000
was grossly excessive. The Court disagrees.
The consideration of a motion for remittitur is within the discretion of the trial court.
Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir. 2001). “Remittitur is
appropriate only when the verdict is so grossly excessive as to shock the conscience of
the court.” Sheriff v. Midwest Health Partners, P.C., 619 F.3d 923, 931 (8th Cir. 2010).
“A verdict is considered grossly excessive when there is a plain injustice or a monstrous
15
or shocking result.” Hudson v. United Sys. of Arkansas, Inc., 70 F.3d 700, 705 (8th Cir.
2013).
As to the economic damages in this case, KLS stipulated that all of the medical
expenses incurred by Jeremiah from June 15th to June 29th were admissible for all
purposes. Doc. 94. The total amount of these expenses was $87,393.55. Tr. I,
128:9-141:4. Dr. Singhal testified that all of these medical expenses were medically
necessary. Tr. II, 315:9-13. Further, Dr. Singhal testified that the device’s failure
extended Jeremiah’s hospital stay, extended the distraction process, and required an
additional surgery to be performed on Jeremiah. Tr. II, 315:14-316:5, 317:15-19. Dr.
Singhal also testified that infants may be released anywhere from 3-10 days following the
implantation surgery, which occurred on June 9th. Tr. II, 317:20-25. The device
implanted in Jeremiah failed, however, requiring a surgery to replace the broken device
on June 19th, and Jeremiah was not released from the hospital until June 30th.
Accordingly, Plaintiffs presented evidence that (1) all the medical expenses incurred by
Jeremiah during his hospital stay were medically necessary and (2) Jeremiah’s hospital
stay was extended as a result of the device’s failure.
As to the non-economic damages, the Court rejects Defendant’s argument that the
jury’s award of pain and suffering was “grossly excessive” because it was allegedly
twenty-eight times the amount of economic damages awarded. In Missouri, “[t]here is no
bright-line rule that non-economic damages cannot exceed economic damages by any
certain multiplier or that damages are to be determined by an arbitrary mathematical
formula.” Evans v. FirstFleet, Inc., 345 S.W.3d 297, 304 (Mo. Ct. App. 2011) (citation
omitted). Defendant describes Jeremiah’s pain as “minor” and argues that Jeremiah
experienced “very little, if any additional pain and suffering” as a result of the device’s
failure. Doc. 163, pp. 4-5. However, Plaintiffs’ presented evidence that Jeremiah’s
parents’ witnessed Jeremiah showing signs of pain and discomfort relating to the device
breaking. Tr. I, 108:7-18, 110:10-14, Tr. II, 436:11-13. Dr. Singhal testified that the
intubation, bone cutting and turning processes associated with a distraction procedure
caused pain to the infant. Tr. II, 360:11-20. The evidence also showed that Jeremiah
had to undergo all of these procedures an additional time due to the device’s failure. Tr.
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II, 302:6-303:9, 315:14-23. The jury heard evidence regarding the medical procedures
performed on Jeremiah as a result of the device’s failure, and the pain associated with
those procedures. The jury could have plausibly found that the economic damages and
non-economic damages warranted a $850,000 verdict and that award does not shock the
Court’s conscience.
III. CONCLUSION
Defendant’s Renewed Motion for Judgment as a Matter of Law, Motion for New
Trial, and Motion for Remittitur are denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: August 14, 2012
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