The Second Time’s a Charm: Jury Deliberations Resume After Partial Delivery of Inconsistent Verdict

Wright Medical Technology, Inc., appealed from a $2,100,000 judgment entered against it following a jury trial, arguing that the jury had been improperly instructed as a matter of Utah law and also that the district judge should not have ordered the jury to continue deliberations after the deputy clerk began to read what turned out to be an inconsistent verdict. The Eleventh Circuit, in an opinion written by District Judge Harvey Bartle III visiting from the Eastern District of Pennsylvania and joined by Judge Charles Wilson and Judge Jill Pryor, rejected both arguments. Christiansen v. Wright Med. Tech., Inc., 2017 WL 1046088 (11th Cir. Mar. 20, 2017).

The trial was the first bellwether trial in a multidistrict litigation involving Wright Medical’s “metal-on-metal” hip replacement device. The plaintiff brought strict liability and negligence claims based on an alleged design defect, and also asserted claims of fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment.  The parties agreed that Utah law applied, and also agreed on a verdict sheet beginning with a question as to the existence of a design defect followed by additional questions, to be answered “[i]f you answered YES” to the first question, as to the elements of (and damages for) the plaintiff’s specific claims.  No further response was required if the answer to the first question was “No.”

On the second day of its deliberations, the jury told the court that it had reached a unanimous verdict. District Judge William S. Duffey, Jr. reviewed the verdict sheet and asked the deputy clerk to begin reading it.  The answer to the first question—about the existence of a design defect—was “No.”  But instead of stopping there, the jury made nine other findings, including a finding of liability for negligent misrepresentation; an apportionment of liability to the plaintiff; an award of $662,500 in compensatory damages; and an award of $2,500,000 in punitive damages.  Just after the deputy clerk read the initial “No” response, the district judge spotted the inconsistency in the responses.  He drew the jury’s attention to the instructions on the verdict sheet, told them to return to the jury room, and added that “if you think you need to deliberate more, I want you to do that.”  Wright Medical moved to have the court accept the initial finding of no design defect and to enter judgment in its favor.  The district court denied the motion, concluding that the jury had not understood the instructions included on the verdict sheet.

After about half a day, the jury told the court they couldn’t reach a unanimous decision; the district judge told them to continue deliberations. At that point, the foreperson and one other juror sent notes to the court indicating that one juror was disregarding “the perspective of the law” and had “decided no longer to participate.”  The judge interviewed the juror, in the presence of counsel, and dismissed the juror without objection from either party.  Soon thereafter the remaining jurors delivered a unanimous verdict finding that the plaintiff had proven the existence of a design defect warranting $550,000 in damages; that the defendant had not proven an “unavoidably unsafe” defense because the product had not been accompanied by proper directions and warnings; that the plaintiff was entitled to $450,000 for the defendant’s negligent misrepresentation; and that the plaintiff was entitled to $10,000,000 in punitive damages.  The jury allocated no fault to the plaintiff.  The court entered judgment on the verdict, later reducing the punitive damages to $1,100,000.

Wright Medical appealed. First, Wright Medical argued that the district court was required to accept the initial “No” response to the first question on the verdict sheet, or in the alternative to order a new trial.  The Eleventh Circuit began with a threshold determination that there had in fact been an inconsistency in the jury’s responses to special interrogatories.  Because “[i]t is apparent from these contradictory and irreconcilable responses that the jury did not understand the instructions on the original verdict sheet,” the Eleventh Circuit rejected the claim that the initial “No” to question one was controlling.

The Eleventh Circuit also rejected Wright Medical’s argument that it was error for the district judge to stop publication of the verdict after only the initial “No” had been read, because that left an impression that the judge “disapproved” of the “No” answer. Fed. R. Civ. P. 49(b) allows a district court receiving special interrogatory responses inconsistent with a general verdict to enter judgment, to order further deliberations, or to order a new trial.  And the Supreme Court’s decision in Dietz v. Bouldin, 136 S. Ct. 1885 (2016), established that a federal district court has the inherent power to recall a jury for further deliberations after identifying an error in the jury’s verdict, even after the jury has been discharged.  The Dietz Court further observed that “[i]n the normal course, when a court recognizes an error in a verdict before it discharges the jury, it has the express power to give the jury a curative instruction and order them to continue deliberating.”  Thus there was no abuse of discretion in the district judge’s instructing the jury to continue deliberating in the case against Wright Medical.

The Eleventh Circuit also rejected Wright Medical’s argument that the district court erred in instructing the jury on application of the “unavoidably unsafe” defense on a case-by-case basis. Wright Medical argued that the Utah Supreme Court would apply a categorical bar against strict liability for manufacturers of medical devices, as it had for FDA-approved drugs.  The Eleventh Circuit rejected the argument, noting that there was no evidence in the record that the hip replacement device at issue had received FDA approval.

Posted by Valerie Sanders.

Back to top