Cisson et al v. C.R. Bard, Inc.

Filing 486

MEMORANDUM OPINION AND ORDER (Motion for a New Trial) denying Defendant C. R. Bard, Inc.'s 450 MOTION for New Trial; denying as moot Defendant C. R. Bard, Inc.'s 479 Request for Ruling, or Alternatively for Hearing, on Motion for New Trial; denying as moot Defendant C. R. Bard, Inc.'s 482 Second Request for Ruling, or Alternatively for Hearing, on Motion for New Trial and Motion to Remit Punitive Damages Award and Amend Judgment; denying as moot the plaintiffs' 458 MOTION to Strike Extraneous Materials Submitted With Bard's Motion for a New Trial. Signed by Judge Joseph R. Goodwin on 1/20/2015. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

DONNA CISSON, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:11-cv-00195

C. R. BARD, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
(Motion for a New Trial)
Pending before the court is Defendant C. R. Bard, Inc.’s Motion for a New Trial [Docket
450]; Defendant C. R. Bard, Inc.’s Request for Ruling, or Alternatively for Hearing, on Motion
for New Trial [Docket 479]; and Defendant C. R. Bard, Inc.’s Second Request for Ruling, or
Alternatively for Hearing, on Motion for New Trial and Motion to Remit Punitive Damages
Award and Amend Judgment [Docket 482]. For the reasons discussed below, I DENY the
defendant’s Motion for a New Trial [Docket 450], and as a result, the defendant’s Requests for
Ruling [Docket 479 & 482] are DENIED as moot. 1
Also before the court is Plaintiffs’ Motion to Strike Extraneous Materials Submitted With
Bard’s Motion for a New Trial (“Motion to Strike”) [Docket 458]. For the reasons discussed
below, the Motion to Strike is DENIED as moot.

1

The court’s disposition on the defendant’s motions related to the punitive damages award is fully explained in a
separate memorandum opinion and order.

I.

Background
This case was the first jury trial within the seven MDLs assigned to me by the Judicial

Panel on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic
organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are
more than 70,000 cases currently pending, approximately 10,000 of which are in the C. R. Bard,
Inc. (“Bard”) MDL, MDL 2187. This particular case concerns Donna Cisson, who was
implanted with transvaginal surgical mesh—specifically, the Avaulta Plus Posterior Biosynthetic
Support System (“Avaulta Plus”) manufactured by Bard to treat POP—in May 2009, and after
receiving the implant, she experienced “significant mental and physical pain and suffering.”
(Compl. [Docket 1] ¶ 10). On March 10, 2011, she and her husband (collectively “the plaintiffs”)
filed suit against Bard for various causes of action, (id.), and trial began on July 29, 2013. 2 After
fourteen days of trial, the plaintiffs ultimately presented three distinct claims to the jury: design
defect, failure to warn, and loss of consortium.
On August 15, 2013, the jury returned a verdict in favor of Ms. Cisson on her design
defect and failure to warn claims. 3 In so doing, the jury awarded Ms. Cisson $250,000 in
compensatory damages, (Verdict Form [Docket 404] ¶ 4), as well as $1,750,000 in punitive
damages, (Verdict Form [Docket 406]). After the trial, I considered and denied Bard’s renewed
motion for judgment as a matter of law, finding that the plaintiffs’ claims had sufficient
evidentiary basis such that the jury’s verdict was reasonable under Federal Rule of Civil
Procedure 50. (Mem. Op. & Order [Docket 448]). Accordingly, I entered judgment in favor of
the plaintiffs. (J. Order [Docket 449]).

2

This case was first tried on July 8, 2013, but resulted in a mistrial. (See Trial Tr. July 10, 2013 [Docket 339], at
495:20). The court then moved the trial to July 29, 2013, which produced a verdict.
3
The jury found that Mr. Cisson had not proven his loss of consortium claim by a preponderance of the evidence.

2

In a final attempt to absolve itself of the jury’s verdict, Bard has moved for a new trial
pursuant to Federal Rule of Civil Procedure 59(a)(1). (Mot. for a New Trial [Docket 450]).
Anxious to submit its case to the Fourth Circuit Court of Appeals, Bard recently requested a
ruling on this motion. (Req. for Ruling, or Alternatively for Hr’g, on Mot. for New Trial [Docket
479] ¶ 4; Second Req. for Ruling, or Alternatively for Hr’g, on Mot. for New Trial and Mot. to
Remit Punitive Damages Award and Amend J. [Docket 482]). My ruling is set forth below.
II.

Legal Standard
Rule 59 allows a court to grant a new trial “for any reason for which a new trial has

heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). The
Fourth Circuit has set forth a three-prong standard to govern Rule 59 motions:
[I]t is the duty of the judge to set aside the verdict and grant a new trial, if he is of
the opinion that (1) the verdict is against the clear weight of the evidence, or (2) is
based upon evidence which is false, or (3) will result in a miscarriage of justice,
even though there may be substantial evidence which would prevent the direction
of a verdict.
Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996)
(internal citations and brackets omitted). When considering a motion for a new trial, the “crucial
inquiry,” particularly when employing the third prong, is “whether an error occurred in the
conduct of the trial that was so grievous as to have rendered the trial unfair.” Bristol Steel & Iron
Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994) (emphasis added).
The decision to grant or deny a new trial “is within the sound discretion of the trial
court.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998). Moreover, the
discretion bestowed under Rule 59 “should be exercised sparingly.” United States v. Arrington,
757 F.2d 1484, 1486 (4th Cir. 1985); see also United States v. Perea, 458 F.2d 535, 536 (10th
Cir. 1972) (“A motion for a new trial is generally not regarded with favor, and is granted only

3

with great caution.”) (emphasis added). I FIND the defendant has fallen far short of clearing this
high bar, and I DENY its Rule 59 motion.
III.

Discussion
Bard asserts four grounds for a new trial:
(1) The Court deprived Bard of a fair trial by excluding evidence of Bard’s
compliance with the FDA’s 510(k) process and other applicable federal
regulations; (2) [t]he Court deprived Bard of a fair trial by admitting the Material
Safety Data Sheet [“MSDS”] into evidence and by other evidentiary rulings; (3)
[t]he Court’s causation rulings deprived Bard of a fair trial; and (4) [t]he Court
deprived Bard of a fair trial by allowing Plaintiffs to assert that Bard should have
performed pre-market human clinical testing without competent expert testimony
to support this claim.

(Mot. for a New Trial [Docket 450], at 1–2). I have addressed each of these concerns in previous
orders during the course of this MDL. (See Order re: C. R. Bard, Inc.’s Mot. for Clarification &
Reconsid. (“Clarification Order”) [Docket 309], at 2–4 (excluding evidence of the 510(k)
process); Mem. Op. & Order re: Parties’ Mots. in Limine (“Order Mots. in Limine”) [Docket
302], at 5–6 (finding that evidence about the MSDS is admissible); Mem. Op. & Order [Docket
448], at 14–19 (concluding that the plaintiffs established causation); Mem. Op. & Order re:
Failure to Test [Docket 356], at 4–9 (explaining the relevance of Bard’s failure to test)). As such,
the plaintiffs contend that Bard is improperly using a Rule 59 motion to “relitigate” old
evidentiary issues. (Pls.’ Resp. in Opp. to Bard’s Mot. for New Trial (“Resp.”) [Docket 461], at
1–2 (quoting In re Miles, 453 B.R. 449, 450 (Bankr. N.D. Ga. 2011))). The Supreme Court has
stated that “alleged substantial errors in admission or rejection of evidence” may warrant a new
trial. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). Thus, this court will
entertain the evidentiary challenges raised in Bard’s Rule 59 motion. To succeed on this theory,
however, Bard must demonstrate that the alleged evidentiary errors were “substantial.” Id.
(emphasis added); see also Creekmore v. Maryview Hosp., 662 F.3d. 686, 693 (4th Cir. 2011)
4

(holding that the court will not set aside a judgment on this basis “unless justice so requires or a
party’s substantial rights are affected”). As explained below, none of Bard’s arguments—taken
individually or together—convey the substantial error required to secure a new trial.
A. Exclusion of Bard’s Compliance with the FDA’s 510(k) Process and “Other
Applicable Federal Regulations”
Prior to trial and over Bard’s objection, this court excluded evidence of Bard’s
compliance with the FDA’s 510(k) process in marketing the Avaulta Plus on the basis of Federal
Rules of Evidence 402 and 403. (See Order Mots. in Limine [Docket 302], at 3). 4 The court’s
rationale focused on the Supreme Court’s decision in Medtronic, Inc. v. Lohr, 518 U.S. 470
(1996):
Under United States Supreme Court precedent, the FDA 510(k) process does not
go to whether the product is safe and effective. Medtronic, Inc. v. Lohr, 518 U.S.
470, 478–79 (1996); see also Riegel v. Medtronic, Inc., 552 U.S. 312, 323 (2008).
There is ample case law discussing Lohr and finding that (1) the 510(k) process
does not go to whether the product is safe and effective and (2) the 510(k) process
does not impose any requirements on its own. See, e.g., Martin v. Am. Med. Sys.,
Inc., 116 F.3d 102, 104 (4th Cir. 1997); Bass v. Stryker Corp., 669 F.3d 501, 507
(5th Cir. 2012); Brooks v. Howmedica, Inc., 273 F.3d 785, 794 (8th Cir. 2001);
Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737, 747 n.6 (E.D. Pa. 2007); Nicoll v. IFlow, LLC, No. 12-1593, 2013 WL 2477032, at *3 (E.D. La. June 7, 2013); Mack
v. Stryker Corp., 893 F. Supp. 2d 976, 985 (D. Minn. 2012). Because the FDA
510(k) process does not go to whether the Avaulta products are safe and effective,
and the 510(k) process does not impose any requirements on its own, the 510(k)
process is inapplicable to this case. This evidence is excluded under Federal Rule
of Evidence 402 as irrelevant, and under Rule 403 [for the] very substantial
dangers of misleading the jury and confusing the issues.
(Clarification Order [Docket 309], at 3–4 (internal footnote omitted)). Bard disagrees with this
holding and maintains that this court’s decision to exclude 510(k) evidence, as well as other FDA
evidence, deprived it of a fair trial, preventing Bard from presenting an adequate defense to the
plaintiffs’ design defect and punitive damages claims. I once again address—and dispose of—

4

For an explanation of the FDA’s 510(k) clearance process, see Lewis v. Johnson & Johnson, 991 F. Supp. 2d 748,
751–52 (S.D. W. Va. 2014).

5

these arguments, finding that 510(k) evidence was not relevant to Bard’s claims under Rules 401
and 402, and any marginal relevance was substantially outweighed by the risk of confusing and
misleading the jury, compelling exclusion under Rule 403.
1. Relevance Under Federal Rules of Evidence 401 and 402
Rule 401 provides that evidence is relevant if “it has a tendency to make a fact more or
less probable than it would be without the evidence.” Fed. R. Evid. 401. Relevant evidence, “as a
general proposition,” is admissible. United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997);
see also Fed. R. Evid. 402 (“Relevant evidence is admissible unless any of the following
provides otherwise: . . . .”). Bard contends that its compliance with 510(k) demonstrated the
reasonableness of the Avaulta Plus’s design and was therefore relevant and admissible evidence.
(See Def.’s Mem. of Law in Supp. of Mot. for a New Trial (“Def.’s Mem. in Supp.”) [Docket
451], at 4–5 (quoting Volkswagen of Am., Inc. v. Gentry, 564 S.E.2d 733, 738 (Ga. Ct. App.
2002) (stating that a jury is “entitled to consider the issue of a manufacturer’s compliance with
federal standards or regulations in determining whether the product design was a reasonable
one”))). Given the Supreme Court precedent on the meaning and purpose of 510(k) clearance,
Bard’s argument fails and cannot support the rarely applied remedy of a new trial.
The Supreme Court has held that compliance with 510(k) focuses on “equivalence, not
safety” and that products entering the market through the 510(k) process have “never been
formally reviewed [for] safety or efficacy.” Lohr, 518 U.S. at 493; Riegel, 552 U.S. at 322
(explaining that the 510(k) process is an “exemption from federal safety review”). If 510(k) does
not go to a product’s safety and efficacy—the “very subjects” of the plaintiffs’ products liability
claims, id. at 323—then evidence of Bard’s compliance with 510(k) has no relevance in this case
and was properly excluded by the court. See Fed. R. Evid. 402 (“Irrelevant evidence is not

6

admissible.”). 5 Likewise, Bard’s compliance with 510(k) does not make it more or less probable
that Bard’s conduct justified punitive damages under Georgia law. Georgia’s Annotated Code
provides for punitive damages when the defendant’s actions exhibit “willful misconduct, malice,
fraud, wantonness, or oppression.” Ga. Code Ann. § 51-12-5.1(b) (2014). Such conduct is not
mitigated by compliance with 510(k), a regulation “intended merely to give manufactures the
freedom to compete.” Lohr, 518 U.S. at 492.
At any rate, assuming the court erred on this ruling, Bard has provided no persuasive
argument that such an error led to a “miscarriage of justice.” In fact, I have applied this ruling in
each subsequent MDL trial. See, e.g., Lewis v. Johnson & Johnson, 991 F. Supp. 2d 748, 754
(S.D. W. Va. 2014) (excluding evidence of 510(k) clearance because “[t]hat a device has been
given clearance through the FDA’s 510(k) process is not relevant to state tort law”); Sanchez v.
Boston Scientific Corp. (Sanchez I), No. 2:12-cv-05762, 2014 WL 4059214, at *15 (S.D. W. Va.
Aug. 18, 2014) (same); Huskey v. Ethicon, Inc., No. 2:12-cv-05201, 2014 WL 1883784, at *2
(S.D. W. Va. May 12, 2014) (concluding that the 510(k) process “is irrelevant to [the plaintiff’s
product liability claims] because it does not relate to safety or efficacy of the product”). 6
5

Because 510(k) is not a safety regulation, the cases underlying Bard’s position are not determinative here. See
Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) (“In determining what constitutes an
unreasonably dangerous defect, a court will consider safety standards promulgated by the government . . . .”);
Stonehocker v. Gen. Motors Corp., 587 F.2d 151, 157 (4th Cir. 1978) (stating that evidence of the manufacturer’s
compliance with a federal safety standard should have been admitted into evidence); Salmon v. Park, Davis & Co.,
520 F.2d 1359, 1362 (4th Cir. 1975) (concluding that compliance with the federal regulations on the contents of a
drug warning is “pertinent” to liability); Doyle, et al. v. Volkswagenwerk Aktiengesellschaft, 481 S.E.2d 518, 519
(Ga. 1997) (considering the preclusive effect of a manufacturer’s compliance with the National Automobile Safety
Act); Gentry, 564 S.E.2d at 736 (allowing evidence regarding the defendant’s compliance with the National Traffic
and Motor Vehicle Safety Act).
6
To no avail, Bard continues to challenge this court’s reliance on Lohr and Riegel. First, Bard attempts to diminish
this controlling law by pointing to the FDA’s publicly released guidance documents. I decline to give these
guidances any deference, given that they merely serve as a description of the FDA’s “current thinking on a topic”
and “do not operate to bind FDA or the public.” FDA, Guidances, http://www.fda.gov/RegulatoryInformation/
Guidances/ (last updated Sept. 19, 2014). Second, Bard tries to overcome this Supreme Court precedent by
distinguishing it, asserting that Lohr, which focused on federal preemption, should not dictate this court’s ruling on
the present motion, which focuses on admissibility under Rules 401 and 402. (See Def.’s Mem. in Supp. [Docket
451], at 7 (“Lohr addressed only whether state law tort claims against the manufacturer of a Class II medical device
were expressly preempted, not the admissibility of a manufacturer’s compliance with the 510(k) process.”)). Bard’s

7

2. Prejudice Under Federal Rule of Evidence 403
The balancing test set forth in Rule 403 also forecloses Bard’s arguments in favor of a
new trial on the basis of 510(k) exclusion. Rule 403 provides that a court “may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Pursuant to this rule and in
exercise of the wide discretion granted under it, see Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S 379, 384 (2008) (explaining that the deferential standard afforded to evidentiary rulings is
particularly important under Rule 403 “since it requires an on-the-spot balancing of probative
value and prejudice”), this court held that the probative value of 510(k) evidence, if any, was
substantially outweighed by the risk of confusing the issues and misleading the jury. (See Order
Mots. in Limine [Docket 302], at 3–4). Bard asserts that this concern was “groundless.” (Def.’s
Mem. in Supp. [Docket 451], at 10–11).
I disagree and stand by my previous ruling, which I explained further in subsequent
cases:
Evidence regarding the 510(k) process poses a substantial risk of misleading the
jury and confusing the issues. That a device has been given clearance through the
FDA’s 510(k) process is not relevant to state tort law. Admission of any evidence
regarding the 510(k) process runs the risk of misleading the jury to believe that
FDA 510(k) clearance might be dispositive of the plaintiffs’ state law claims. The
prejudicial value of evidence regarding the 510(k) process far outweighs its
argument, however, mistakenly treats preemption under the Federal Food, Drug, and Cosmetic Act (“FDCA”) and
admissibility under the Federal Rules of Evidence as mutually exclusive concepts when in fact, both hinge on
whether 510(k) relates to the safety and effectiveness of a medical device. In concluding that 510(k) does not have
preemptive effect under the FDCA, the Lohr Court first determined that the 510(k) process (1) does not impose
device-specific requirements on its own and (2) does not relate to safety or effectiveness. See Lohr, 518 U.S. at 493–
94. Because 510(k) does not relate to safety, it follows that 510(k) clearance of the Avaulta Plus does not speak to
the “gravity and severity of the danger posed by the design; the likelihood of that danger; [and] the avoidability of
the danger,” which are factors Georgia courts generally consider when faced with design defect claims. Banks v. ICI
Ams., Inc., 450 S.E.2d 671, 675 n.6 (Ga. 1994). In this way, Lohr’s preemption analysis, though not speaking
directly to relevance, nevertheless prompted the admissibility ruling in this case, resulting in the exclusion of 510(k)
evidence under Rule 402.

8

probative value. . . . Jurors are likely to believe that FDA enforcement relates to
the validity of the plaintiffs’ state law tort claims, which it does not.
[Furthermore,] the jury may attach undue significance to an FDA determination,
and [] alleged shortcomings in FDA procedures are not probative to a state law
products liability claim.
Lewis, 991 F. Supp. 2d at 754–55 (internal quotations omitted); see also Sanchez v. Boston
Scientific Corp. (Sanchez II), No. 2:12-cv-05762, 2014 WL 4851989, at *35 (“[T]estimony about
the requirements of the FDCA, which are not at issue in this case, could lead to more confusion
about the [state law claims] than enlightenment.”). In addition, allowing 510(k) evidence would
have provoked the parties to engage in a time-consuming mini-trial on whether Bard in fact
complied with its provisions. 7 Excluding 510(k) evidence avoided these risks and was therefore
proper under Rule 403.
Bard also contends that the court’s exclusion of 510(k) compliance “exacerbated
prejudice” by preventing Bard from defending its decision not to conduct premarket human
clinical trials. (Def.’s Mem. in Supp. [Docket 451], at 11). My pretrial ruling adequately
addresses this matter, and I adopt it here:
The FDA 510(k) process does not go to safety and effectiveness and does not
provide any requirements on its own. Basically, it has no . . . operative interaction
with state tort laws. Whether the FDA 510(k) process required testing before or
after marketing has nothing to do with whether Bard satisfied any other obligation
under common law to conduct testing and then to do whatever it might have been
required to do under law with the results of that testing. . . . In sum, Bard had a
duty to test the Avaulta product as part of the risk-utility analysis assessing the
reasonableness of its conduct independent of the FDA 510(k) process.
(Mem. Op. & Order re: Failure to Test [Docket 356], at 12–13).

7

Although Bard asserts that such a mini-trial would not have developed, the back-and-forth on this issue both prior
to and after trial has justified my fears. (See Order Mots. in Limine [Docket 302], at 4 (“Given the parties’ filings
throughout this case, it is abundantly clear that there would be a substantial mini-trial on the 510(k) process and
enforcement should it be allowed.”); Resp. [Docket 461], at 11 n.2 (insisting that had the court allowed Bard to
introduce FDA clearance, plaintiffs would have responded with evidence regarding the FDA’s recent concerns with
the safety of pelvic mesh products)).

9

In sum, even if 510(k) compliance satisfied the relevance standard of Rule 401, the
substantial risk of misleading the jury and wasting judicial resources by diving into a morass of
FDA regulations—none of which relate to the state law claims at issue—weighed heavily in
favor of exclusion. I therefore FIND that the exclusion of 510(k) evidence does not warrant a
new trial. 8
3. Motion to Strike
Before turning to Bard’s next argument, I quickly address the plaintiffs’ Motion to Strike
[Docket 458], which I consider as merely an additional objection to Bard’s Motion for a New
Trial on the basis of the court’s exclusion of 510(k) evidence. The plaintiffs challenge four
exhibits attached to Bard’s Motion for a New Trial as “extraneous” evidence that should not be
considered by the court at this stage, given that Bard did not make an appropriate offer of proof
at trial. (Mot. to Strike [Docket 458], at 1). In response, Bard asserts that an offer of proof on
these exhibits was unnecessary under Federal Rule of Evidence 103(b), and as such, the
“documents at issue are within the scope of the court’s ruling.” (Mem. of Law in Opp. to Pls.’
Mot. to Strike [Docket 467], at 6). Quarrels about the adequacy of an offer of proof have a time
and place, but it is not here. I have not considered the documents attached to Bard’s Motion for a

8

Though the above discussion focuses exclusively on Bard’s compliance with 510(k), the same rationale under Rule
403 applies to the court’s exclusion of other federal regulations that do relate to safety and effectiveness. (See Def.’s
Mem. in Supp. [Docket 451], at 5 (asserting that the court wrongly excluded Bard’s compliance with other federal
regulations, including “quality system requirements,” “design requirements,” and “specific labeling regulations”)).
Even if these regulations go to safety and effectiveness, as Bard suggests, evidence of compliance is not
automatically admissible. See Fed. R. Evid. 402 advisory committee notes (“[N]ot all relevant evidence is
admissible.”); Fed. R. Evid. 403 (providing that the court may exclude evidence if its probative value is substantially
outweighed by the risk of confusing the issues or misleading the jury, among other things). At trial, I ruled that
allowing the attorneys to “go down the road of federal regulatory schemes” would risk confusing and misleading the
jury. (Trial Tr. July 29, 2013 [Docket 362], at 209:1–3). I see no reason to deviate from this ruling. Indeed, I have
held similarly in every other MDL case. See, e.g., Sanchez II, 2014 WL 4851989, at *35 (ruling that evidence about
“the requirements of the FDCA, which are not at issue in this case, could lead to more confusion about the failureto-warn claim than enlightenment”); Lewis, 991 F. Supp. 2d at 755 (ruling that introducing evidence of FDA
regulations may result in the jury “attach[ing] undue significance to an FDA determination”). Given that the
probative value of evidence on regulatory compliance is substantially outweighed by the risk of jury confusion, the
court properly excluded such evidence under Rule 403.

10

New Trial, nor am I willing to consider these documents, as they concern subjects that I have
excluded as minimally relevant and extremely misleading. Thus, I DENY as moot the plaintiffs’
Motion to Strike [Docket 458].
B. Admission of the Material Safety Data Sheet
In its initial motions in limine, Bard moved to preclude any evidence or argument
concerning the MSDS that accompanied the polypropylene resin material used to manufacture
the Avaulta Plus. (See Def. C. R. Bard, Inc.’s Initial Mots. in Limine [Docket 268], at 4). 9 The
MSDS states, in relevant part, as follows:
MEDICAL APPLICATION CAUTION: Do not use this Phillips Sumika
Polypropylene Company material in medical applications involving permanent
implantation in the human body or permanent contact with internal body fluids or
tissues.
(Id. at 6). I denied Bard’s motion in limine, finding that to the extent the plaintiffs offered the
MSDS for the truth of the matter asserted, it was admissible under several hearsay exceptions:
The MSDS falls within the hearsay exception found in Rule 803(17) as an “other
compilation[] that [is] generally relied on by the public or by persons in particular
occupations.” Fed. R. Evid. 803(17). [And t]o the extent that the plaintiffs
introduce the statements in the MSDS through an expert witness, the statements
fall within the hearsay exception found in Rule 803(18) as a “statement contained
in a . . . pamphlet.” Fed. R. Evid. 803(18). Finally, the MSDS falls within the
residual hearsay exception under Rule 807.
(Order Mots. in Limine [Docket 302], at 4–5). Bard now argues that even if the MSDS satisfied a
hearsay exception, “its probative value is substantially outweighed by the danger of unfair
prejudice to Bard,” and as such, “the Court should have excluded it under Fed. R. Evid. 403.”
(Def.’s Mem. in Supp. [Docket 451], at 14).

9

Federal law requires chemical manufacturers, distributers, or importers to “develop a safety data sheet for each
hazardous chemical they produce or import.” 29 C.F.R. § 19010.1200(g)(1) (2014). This material safety data sheet,
known as an “MSDS,” must include various data about the chemical, including its composition and ingredients,
physical and chemical properties, and toxicological information. Id. § 19010.1200(g)(2).

11

I disagree. As previously explained, evidence has probative value if it “has any tendency
to make a fact more or less probable than it would be without the evidence.” Fed. R. Evid.
401(a). Here, the MSDS, which cautions against using the polypropylene resin in a permanent
medical implant, bolstered many of the plaintiffs’ claims, making them more probable than not.
For instance, the MSDS demonstrated that Bard had knowledge about certain risks of the
Avaulta Plus that it did not communicate to implanting physicians, therefore providing support
for the plaintiffs’ failure to warn claim. (See, e.g., Trial Tr. July 30, 2013 [Docket 365], at 110:8–
9 (introducing testimony of Ms. Cisson’s implanting physician, Dr. Raybon, who was
“astounded” when he saw the MSDS)). Bard’s disregard of the risks presented in the MSDS also
provided evidence of willful misconduct and wantonness that furthered an award of punitive
damages. (See Trial Tr. Aug. 7, 2013 [Docket 377], at 60:24–61:2 (introducing testimony that
Mr. Darois, the Vice President of Research and Development for the Davol division of Bard, did
not perform further studies after becoming aware of the MSDS in 2007)); see also Sanchez I,
2014 WL 4059214, at *13 (“A reasonable jury could find that by ignoring a warning on the
MSDS and failing to conduct clinical testing, BSC’s actions were despicable conduct with
willful and conscious disregard of the safety of consumers.”). Therefore, the MSDS tended to
make more probable than not the plaintiffs’ claims for failure to warn and punitive damages, and
Bard has not demonstrated that this probative value collapses under Rule 403. Moreover, Bard
has provided no arguments indicating that this ruling was “substantial[ly] erro[neous]” such that
a new trial should be ordered.
I do not find any of Bard’s other arguments on this issue meritorious. First, Bard
contends that the court’s exclusion of FDA compliance prevented Bard from explaining to the
jury that disregarding the MSDS “was reasonable” under the FDA’s regulatory framework,

12

which focuses on the safety of “finished medical devices, not the raw material.” (Def.’s Mem. in
Supp. [Docket 451], at 15). Because Bard was able to make this point without referring to the
FDA, there is no reason to order a new trial on this basis. (See, e.g., Trial Tr. Aug. 7, 2013
[Docket 377], at 81:3–82:6 (providing testimony of Mr. Darois, who explained to the jury that
the MSDS provides “warnings and precautions for people that are handling the [resin] pellets and
is not meant to apply to the finished polypropylene mesh product”)).
Second, Bard claims that the court’s exclusion of 510(k) evidence unfairly prevented
Bard from demonstrating that the FDA knew about and considered the MSDS at issue in its
510(k) evaluation of the Avaulta Plus. (See Def.’s Mem. in Supp. [Docket 451], at 16). This
argument “exaggerates the importance of the § 510(k) process.” Lohr, 518 U.S. at 492. No
matter the materials reviewed by the FDA in the 510(k) process, the result is the same—510(k)
clearance does not speak to the safety and effectiveness of a product or the raw materials forming
it. See id. at 493 (holding that the 510(k) review process focuses on “equivalence, not safety”).
The FDA’s consideration of the MSDS therefore had little probative value and served only to
confuse the jury.
Third, Bard disputes the court’s exclusion of other manufacturers’ use of polypropylene
in violation of the MSDS, asserting that Georgia law allows a jury to consider industry-wide
practices in determining products liability. (See Def.’s Mem. in Supp. [Docket 451], at 16
(quoting Barger v. Garden Way, Inc., 499 S.E.2d 737, 743 (Ga. Ct. App. 1998))). At trial, I
excluded other manufacturers’ treatment of the MSDS in order to “avoid disentangling” this case
with other pelvic mesh cases existing within these MDLs. (Trial Tr. Aug. 7, 2013 [Docket 377],
at 221:10–11). I did not want to confuse the jury by “open[ing] up all the other lawsuits.” (Id. at
221:11–12). This reasoning under Rule 403 still applies a year later—indeed, the risk of

13

confusing the jury with the existence of other pending lawsuits is arguably greater now, given the
increased public awareness of pelvic mesh litigation.
Last, Bard argues that the court’s exclusion of Dr. Maureen Reitman’s expert opinion on
the MSDS prevented Bard from responding to the “accusations” arising from Bard’s treatment of
the MSDS. (Def.’s Mem. in Supp. [Docket 451], at 16). This argument is not convincing, given
that the court properly excluded Dr. Reitman’s opinion on the MSDS—which was not included
in her expert report—pursuant to Federal Rules of Civil Procedure 26(2)(B) and 37(c)(1). See
Fed. R. Civ. P. 26(a)(2)(B) (requiring parties to disclose “a complete statement of all opinions
[an expert] witness will express”); Fed. R. Civ. P. 37(c)(1) (providing that if a party fails to
provide information as required by Rule 26(a), then the party cannot use that information at
trial).
To summarize, Bard has not demonstrated that the admission of the MSDS resulted in a
miscarriage of justice, and accordingly, I FIND that a new trial is not warranted on this point.
C. Causation Rulings
Next, Bard challenges the court’s rulings related to causation, beginning with the court’s
“refus[al] to instruct the jury that, under Georgia law, plaintiffs were required to prove causation
by expert testimony stated to a reasonable degree of medical certainty.” (Def.’s Mem. in Supp.
[Docket 451], at 17). Although providing the jury with improper instructions can justify a new
trial, see Wyatt v. Interstate & Ocean Transp. Co., 623 F.2d 888, 892 (4th Cir. 1980),
disapproved of on other grounds, Bowen v. U.S. Postal Serv., 459 U.S. 212 (1983) (affirming the
district court’s action of granting a new trial “because the jury was improperly instructed on the
question of liability and reached their decision under an incomplete theory of law”), the court did

14

not provide improper instructions in this case. The court instructed the jury as directed by the
Georgia Suggested Pattern Jury Instructions, nearly word-for-word:
Proximate cause is that which, in natural and continuous sequence, unbroken by
other causes, produces an event and without which the event would not have
occurred. Proximate cause is that which is nearest in the order of responsible
causes (as distinguished from remote) that which stands last in causation, not
necessarily in time or place, but in causal relation. . . . A plaintiff bears the burden
of proof in showing proximate cause by a preponderance of the evidence. . . .
To recover damages, a person injured by an allegedly defective product must
establish the following three elements by a preponderance of the evidence: (1)
The product was in fact defective; (2) the defect existed at the time the product
left the manufacturer’s control, and (3) the defect in the product was a proximate
cause of the plaintiff’s injury. . . .
(Final Jury Instructions [Docket 399], at 9–10); see also Ga. Suggested Pattern Jury Instructions,
Vol. I: Civil Cases §§ 60.200 & 62.610 (5th ed.) (providing the instructions used at this trial).
The Georgia Suggested Pattern Jury Instructions do not require the court to instruct the jury that
causation must be established through competent expert testimony to a reasonable degree of
medical certainty, nor does any Georgia case require this language. See Toole v. Ga.-Pac., LLC,
No. A10A2179, 2011 WL 7938847, at *2 (Ga. Ct. App. Jan. 19, 2011) (explaining that the
defendant’s experts “rendered competent medical opinions even though they did not use the
phrase ‘to a reasonable degree of medical certainty’” (citing Beasley v. Northside Hosp., Inc.,
658 S.E.2d 233, 237 (Ga. Ct. App. 2008), Ambling Mgmt. Co. v. Purdy, 640 S.E.2d 620, 627
(Ga. Ct. App. 2006), and Brown v. Hove, 603 S.E.2d 63, 65 (Ga. Ct. App. 2004))).
In addition, Bard contends that while the plaintiffs presented “three theories of design
defect,” they only supported one of the alleged defects—the placement of the device’s arms—
with causation evidence sufficient to put the issue before a jury. (Def.’s Reply Mem. of Law in
Supp. of Mot. for a New Trial [Docket 469], at 18). As to the plaintiffs’ other theories of design
defect concerning pore size and use of polypropylene, Bard argues that “there was no evidence”
15

of proximate causation, and so the court should not have allowed the jury to consider them. (Id.).
I have previously addressed this argument, and, finding no further explanation necessary, I adopt
it here:
[T]he plaintiffs were not required to separate the alleged defects as Bard now
attempts to do. Georgia law provides that in a products liability case “it is not
necessary for the plaintiff to specify precisely the nature of the defect.” Trickett v.
Advanced Neuromodulation Sys., Inc., 542 F. Supp. 2d 1338, 1345 (S.D. Ga.
2008); see also, e.g., Williams v. Am. Med. Sys., 548 S.E.2d 371, 374 (Ga. Ct.
App. 2001); Waddy v. Globus Med., Inc., No. 407CV075, 2008 U.S. Dist. LEXIS
73030, at *12 (S.D. Ga. Aug. 18, 2008). What a plaintiff must show is that “the
device did not operate as intended and this was the proximate cause of [the
plaintiff’s] injuries.” Trickett, 542 F. Supp. 2d at 1345.
Using this logic, it was not necessary for the plaintiffs to specify the exact defect
in the Avaulta Plus that injured Ms. Cisson, as long as they presented evidence to
demonstrate that the device did not function as intended, and that it proximately
caused Ms. Cisson’s injuries. Therefore, if the plaintiffs presented evidence of any
design defect in the Avaulta Plus and presented evidence to show that the defect
proximately caused Ms. Cisson’s injuries, the case must go to the jury. The
plaintiffs did not allege three separate design defect claims related to the arms,
polypropylene, and pore size; they argued that the Avaulta Plus was defectively
designed. Similarly, there was one jury instruction for design defect, not three.
The issue of whether the arms in the Avaulta Plus constitute a design defect
cannot be separated from the design defect claim as a whole, as Bard now
attempts to assert. Where a plaintiff has presented any evidence of a design
defect, judgment as a matter of law rarely will be granted. See, e.g., Ogletree v.
Navistar Int’l Transp. Corp., 522 S.E.2d 467, 470 (Ga. 1998) (stating that the
risk-utility test used in Georgia to determine whether a product was defectively
designed “increased the burden of a defendant, in seeking a judgment as a matter
of law, to show plainly and indisputably an absence of any evidence that a
product as designed is defective”); In re Mentor Corp. ObTape Transobturator
Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1365 (M.D. Ga. 2010) (“In
general, weighing the risk-utility factors is left to the jury. Judgment as a matter of
law will rarely be granted in design defect cases when any of the elements is
disputed.”). Here, the plaintiffs presented evidence showing that, because of the
arms on the device, the Avaulta plus was defectively designed. This was conceded
by Bard in its Rule 50(a) motion. Therefore, judgment as a matter of law is not
appropriate on the design defect claim.

16

(Mem. Op. & Order [Docket 448], at 7–9). 10
I therefore FIND that neither the court’s jury instruction on causation nor the court’s
submission of the design defect claim to the jury resulted in a “substantial” error that would
require a new trial.
D. Admission of Testimony on Premarket Human Clinical Testing
Finally, Bard asks this court to grant its motion because the plaintiffs’ “allegations
regarding Bard’s decision to not perform premarket clinical testing should not have been allowed
to proceed to trial.” (Def.’s Mem. in Supp. [Docket 451], at 20). In Bard’s view, “the incomplete
presentation of evidence on clinical testing effective[ly] imposed a legal duty to test upon Bard
where none existed, thereby “inflaming the jury’s prejudice.” (Id.). To the extent that I am able
to parse Bard’s rather disorganized prose, I find it unpersuasive and readily addressed by my
prior rulings. I have previously explained the relevance of preclinical testing to claims of design
defect and failure to warn:
While there is no claim for failure to test under Georgia law, under the risk-utility
analysis for design defects, the duty to exercise reasonable care includes the duty
to test the product. See, e.g., Lillebo v. Zimmer, Inc., No. 03-2919 (JRT/FLN),
2005 WL 388598, at *8 (D. Minn. 2005); Nicklaus v. Hughes Tool Co., 417 F.2d
983, 986 (8th Cir. 1969); Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076,
1089–90 (5th Cir. 1973); Dartez v. Fibreboard Corp., 765 F.2d 456, 461 (5th Cir.
1985); Nicholson v. Am. Safety Util. Corp., 476 S.E.2d 672, 676 (N.C. Ct. App.
1996); Hensley v. Danek Med., Inc., 32 F. Supp. 2d 345, 351 (W.D.N.C. 1998);
see also Restatement (Third) of Torts: Prod. Liab. § 2 cmt. m. (1998) (“Of course,
a seller bears responsibility to perform reasonable testing prior to marketing a
10

Bard argues that the court “applied the wrong standard” when relying on Trickett to reach this conclusion because
Trickett’s rationale applies only to claims of manufacturing defect and not to claims of design defect. (Def.’s Mem.
in Supp. [Docket 451], at 17–18). I do not find this argument persuasive. The logic set forth in Trickett, though not
expressly referring to design defect claims, equally applies in this case, where, as in Trickett, the plaintiffs have
provided evidence that the device “did not operate as intended,” resulting in the plaintiff’s injuries. Trickett, 542 F.
Supp. 2d at 1345; see also Waddy, 2008 U.S. Dist. LEXIS 73030, at *12 (explaining that the plaintiffs’ “inability to
determine a specific defect in the [product] is not fatal to his [strict liability] claims”). In any event, assuming that
the court incorrectly relied on Trickett, as Bard suggests, the court’s decision to send the plaintiffs’ design defect
claim to the jury was not “so grievous as to render the trial unfair,” Bristol Steel & Iron Works v. Bethlehem Steel
Corp., 41 F.3d 182, 186 (4th Cir. 1994), considering Bard’s failure to “show plainly and indisputably an absence of
evidence that a product as designed is defective.” Ogletree, 522 S.E.2d at 470.

17

product and to discover risks and risk-avoidance measures that such testing would
reveal.”). . . .
The duty to test is subsumed within the plaintiffs’ design defect and failure to
warn claims. See, e.g., Lillebo, 2005 WL 388598, at *8 (duty to test as part of
risk-utility analysis); Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 793–
94 (E.D. La. 2011) (duty to test as part of duty to warn).
(Mem. Op. & Order re: Failure to Test [Docket 356], at 6–9). 11 Additionally, no “fundamental
prejudice” resulted from allowing evidence on preclinical testing while simultaneously
prohibiting Bard from explaining the “regulatory framework” for its actions, (Def.’s Mem. in
Supp. [Docket 451], at 20), given that “Bard had a duty to test the Avaulta product as part of the
risk-utility analysis assessing the reasonableness of its conduct independent of the [federal
regulatory] process,” (Mem. Op. & Order re: Failure to Test [Docket 356], at 13).
For these reasons, I FIND that the court’s decision to admit evidence on Bard’s failure to
conduct testing does not call for a new trial.
IV.

Conclusion
The arguments advanced in support of a new trial are unpersuasive. Crucially, none of the

objections raised by Bard constitutes an error “so grievous as to have rendered the trial unfair.”
Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994). On the
contrary, the evidentiary decisions made during this trial ensured that the jury would hear the
most probative evidence from each side without being confused and misled by superfluous and
complicated testimony. Thus, applying the hesitancy and caution that a district court must

11

Indeed, the Georgia Pattern Jury Instructions indicate the relevance of clinical testing to these strict liability
claims. With respect to a design defect claim, whether a manufacturer tested a product can substantiate or invalidate
several of the factors within Georgia’s risk-utility analysis, such as “the severity of the danger posed by the design,”
“the likelihood of that danger,” and the “ability to eliminate the danger without impairing the product’s usefulness.”
Ga. Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 62.650 (5th ed.). And with respect to a failure-to-warn
claim, whether a manufacturer assessed a product’s “potential dangers” can demonstrate the adequacy or inadequacy
of the product’s accompanying warnings. Id. § 62.680.

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employ in these circumstances, this court DENIES Bard’s Motion for a New Trial [Docket 450]
and DENIES as moot Bard’s subsequent requests for ruling [Docket 479 & 482].
Furthermore, for the reasons explained above, the court DENIES as moot the plaintiffs’
Motion to Strike [Docket 458].
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.

ENTER:

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January 20, 2015