We don’t normally comment on verdicts, whether they favor our side or the plaintiffs, because the bare fact of a verdict doesn’t give us much to analyze, and analysis is what this blog is about. But we make an exception for the bizarre verdict handed down last week in the first bellwether trial in the Bard IVC Filter MDL.
We’ve seen the verdict form, and the plaintiffs submitted four theories of liability to the jury: (1) strict liability design defect; (2) strict liability failure to warn; (3) negligent design; and (4) negligent failure to warn. According to the 360 story (unfortunately behind a paywall to non-subscribers), the jury found that the defendant’s IVC filter wasn’t defectively or negligently designed, and – more importantly for our purposes – also held that there was no strict liability warning defect (the case was under Georgia law, and Georgia is a Restatement §402A state).
After having rendered defense verdicts on the first three theories, the IVC jury found that, somehow, the defendant had negligently failed to warn about the same risks as to which there was no strict liability warning defect.
That’s inconsistent, if not impossible.
We haven’t looked at Georgia law, but the exact same thing happened not too long ago in California, in Trejo v. Johnson & Johnson, 220 Cal. Rptr.3d 127 (App. 2017), review denied (Cal. Oct. 11, 2017), a case we blogged about here. In Trejo, we were mostly interested in the fate of the plaintiff’s design-related claims (they were preempted), but the court also held that, where the jury had determined that no warning-related, strict-liability defect existed, it was inherently inconsistent for the jury to turn around and find negligent failure to warn:
Considering that both the strict liability and negligence theories were premised on a single alleged defect – failure to warn of [the same risk] – the jury’s findings meant, in substance, that [defendant] was not strictly liable for failure to warn of those possible reactions because they created no substantial danger, but was liable for negligent failure to warn because those possible reactions were, or were likely to be, dangerous. As we next explain, we conclude that these verdicts are fatally inconsistent.
Trejo, 220 Cal. Rptr.3d at 142.
Why is that? We’ll let the California Court of Appeals explain.
“[A] finding of negligent failure to warn is logically and legally inconsistent with the jury’s finding [in favor of defendants] on plaintiffs’ strict products liability failure to warn.” Id. (quoting Oxford v. Foster Wheeler LLC, 99 Cal. Rptr.3d 418, 435 (App. 2009)). That’s because “the manufacturer’s strict liability duty to warn is greater than its duty under negligence, and thus negligence requires a greater showing by plaintiffs.” Id. (Valentine v. Baxter Healthcare Corp., 81 Cal. Rptr.2d 252, 263 (App. 1999)).
Strict liability was invented precisely so it would be easier to prove than negligence. Thus a “defense verdict . . . on strict liability failure to warn subsume[d] the cause of action for negligent failure to warn so that” the proper result was “to direct a defense judgment on that negligence count.” Trejo, 220 Cal. Rptr.3d at 142 (quoting Valentine again). “[T]he defense verdict on strict liability failure to warn mandated a defense verdict on negligent failure to warn as well.” Id.
A negligence formulation of a warning claim – that a defendant “has a duty to use reasonable care to give a warning” of a risk that makes the product “likely to be dangerous” to users whom “the supplier has reason to believe . . . will not realize [the product’s] danger,” id. – requires greater proof of failure to warn than strict liability, which allows recovery whenever a “substantial” danger requires a better warning than what the plaintiff (or the physician in a learned intermediary case) received:
[A] product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger but fails to give adequate warning of such danger. A manufacturer has a...
