In Kaiser v. Johnson & Johnson and Ethicon, Inc., No. 18-2944 (7th Cir. Jan. 14, 2020) Johnson & Johnson subsidiary Ethicon Inc. did not persuade the 7th Circuit Court of Appeals to reverse a multi-million-dollar verdict for a northern Indiana woman who was injured by a transvaginal mesh implant produced by the company. Plaintiff Kaiser sued Johnson & Johnson and Ethicon, and a jury found that she had established both her claims of negligent design defect and negligent failure to warn. It awarded her $10 million in compensatory damages and $25 million in punitive damages. Indiana Northern District Court Judge Phillip Simon, however, granted Ethicon?s motion for remittitur and reduced the punitive award to $10 million.
Ethicon appealed, with arguments concerning federal preemption, Indiana product liability law, claimed evidentiary error and the compensatory and punitive damages. But calling Ethicon?s appeal a ?broad-spectrum attack on the judgment? in a Tuesday decision, the Seventh Circuit rejected those arguments and affirmed the district court. The Seventh Circuit rejected Ethicon?s claim of federal preemption. The Court determined that the requirements of the FDA?s premarket-notification process do not directly conflict with Indiana law. The unanimous opinion addressed Ethicon’s contention that federal law trumps Indiana’s state product liability laws, saying, “Federal law did not stop Ethicon from satisfying its state-law duties regarding Prolift’s design.”
Moreover, the Court noted that a reasonable jury could conclude that the Prolift mesh was unreasonably dangerous based upon the physician?s assertion that additional warnings about complications would have led him to choose a different treatment plan. The Court also rejected challenges to the damages and to jury instructions. Seventh Circuit precedent interprets the Indiana Product Liability Act to require a plaintiff in a design-defect case to produce evidence of a reasonable alternative design for the product but the Indiana Supreme Court disagreed in 2010. Thus, the Court determined that the state supreme court?s decision controls on a matter of state law.