. . . .And a few other claims too. But the punitive damages decision jumped out at us as something we don't see that often. In fact, the court in Nunez v.
Back to the case. Plaintiff brought suit alleging complications following surgery with defendant's surgical mesh medical device. Defendant moved for summary judgment on all of plaintiff's claims except for design defect. Defendant won on each count it moved against.
First up - failure to warn. The court reviewed the Instructions for Use ("IFU") that accompanied the product and found them to adequate as a matter of law. The court found that they covered the very injury plaintiff alleged she suffered, including data from clinical studies of those adverse events. Id. at *4. Plaintiff argued that the IFU were inadequate because they characterized the risks as "potential." However, relying on Eleventh Circuit case law, the court ruled that a product label need only "make apparent the potential harmful consequences." Id. (citation omitted). Really any other result would be absurd. Most risks are "potential," not certain. Not every patient experiences every side effect. Some don't experience any. That's the precise meaning of potential and drug labels would be misleading if they suggested otherwise.
Batting second - fraud-based and warranty claims. The court saw these for what they were - "repackaged" failure to warn claims which failed for the same reasons. Id.
Up third - negligent infliction of emotional distress. Here the court found plaintiff did not satisfy the requirements of the claim. An emotional distress claim is when plaintiff can demonstrate that she suffered a physical harm caused by a psychological trauma. Here, there is no dispute that plaintiff alleges her physical injuries were caused by defendant's medical device, not a psychological trauma. Id. at *5.
Now that's three strikes and in real baseball we'd say the pitcher retired the side - three up, three down. But, there's a fourth claim to resolve so we're going to say -
Batting clean-up - punitive damages. Under
The court found that in the mesh MDLs, only one bellwether decision ruled on the issue at summary judgment denying the motion under
So, it's four up and four down in our products liability version of baseball. If we aren't getting live baseball soon, this blogger will just have to re-watch the
Originally published
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