J. A17032/19
2020 PA Super 95
KIMBERLY L. ADKINS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHNSON & JOHNSON, ETHICON, INC. :
INDIVIDUALLY AND D/B/A ETHICON, :
GYNECARE, SECANT MEDICAL, INC., :
SECANT MEDICAL, LLC, PRODESCO, :
INC., AND SECANT MEDICAL :
:
APPEAL OF: ETHICON, INC. AND :
JOHNSON & JOHNSON, : No. 2700 EDA 2017
:
Appellants :
Appeal from the Order Entered July 19, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. July Term, 2013 No. 919
BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: Filed: April 15, 2020
Ethicon, Inc. and Johnson & Johnson (collectively, “Ethicon”) appeal
from that part of the July 19, 2017 order entered in the Court of Common
Pleas of Philadelphia County that granted the post-trial motion of Kimberly L.
Adkins (“Adkins”) and awarded a new trial on the issue of damages with
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respect to design defect in the underlying product liability action.1 We affirm
and remand for proceedings consistent with this Opinion.
The record reflects that Adkins, an Ohio resident, was implanted with a
pelvic-mesh device known as TVT SECUR (the “Device”) for treatment of
female stress urinary incontinence. The implantation occurred in Ohio. Adkins
instituted the underlying product liability action in Pennsylvania alleging
defective design and inadequate warnings and seeking damages for injuries
sustained as a result of the implantation of the allegedly defective Device.
With respect to personal jurisdiction over Ethicon, the trial court concluded
that because Secant Medical, Inc., a defendant below, manufactured, in part,
the pelvic mesh in Pennsylvania and because Ethicon availed itself of the
privilege of conducting activities in Pennsylvania by contracting with Secant
Medical, Inc., to perform a portion of the manufacturing, the trial court had
personal jurisdiction over Ethicon pursuant to Int’l Shoe Co. v. Washington,
1 We note that the July 19, 2017 order also denied Adkins’s post-trial motion
with respect to juror number one and her failure to warn cause of action.
Adkins did not appeal.
We further note that the record reflects that the trial court dismissed
Secant Medical, Inc.; Secant Medical, LLC; Prodecso, Inc.; and Secant Medical
from the underlying lawsuit prior to trial after it determined that these entities
were not “manufacturers” of the product that was the subject of the underlying
lawsuit as that term is defined under Ohio Rev. Code § 2307.71(A)(13), which
law applies substantively. We further note that although the certified record
before us is clear that the only defendants to proceed to trial were
Ethicon, Inc. and Johnson & Johnson, it is not clear as to the procedural
mechanism employed that resulted in Gynecare, a division of Ethicon, Inc.,
being dismissed from the underlying lawsuit.
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326 U.S. 310 (1945), and its progeny. (Trial court opinion, 5/18/18 at 11-12.)
Therefore, Pennsylvania law governs the procedural matters of this case. See
Sheard v. J.J. Deluca Co.,
92 A.3d 68, 76 (Pa.Super. 2014) (reiterating that
the law of the chosen forum governs procedural matters). The certified record
before us indicates that the parties agreed that their rights and duties would
be determined under Ohio law.
The trial court summarized the relevant procedural history as follows:
On June 9, 2017, a jury returned a verdict for
[Ethicon]. The jury found that [the Device] was
defective in design and that [a]ppellants failed to
adequately warn pelvic floor surgeons of the
[Device’s] risks of harm. However, the jury also found
that neither the design defect nor the inadequate
warnings proximately caused injury to [Adkins].
On July 19, 2017, the [trial c]ourt granted [Adkins’s]
Post-Trial Motion and ordered the case to proceed to
a damages hearing [on design defect only]. On
July 26, 2017, [Ethicon] filed a Motion for
Reconsideration, which was denied on July 31, 2017.
On August 16, 2017, [Ethicon] filed a timely Notice of
Appeal to the Superior Court of Pennsylvania under
Pa.R.A.P. 311(a)(6).[2]
2 Pa.R.A.P. 311(a)(6) permits an appeal as of right of an interlocutory order
in a civil action that awards a new trial. See Mirabel v. Morales, 57 A.3d
144, 149 n.6 (Pa.Super. 2012) (reiterating that under Rule 311(a)(6),
Pennsylvania Superior Court has jurisdiction to hear appeal from order
granting new trial limited solely to issue of damages).
We note that after Ethicon filed its notice of appeal, Adkins filed an
application to dismiss the appeal in which she contended that this court lacks
jurisdiction to entertain the appeal under Rule 311(a)(6) because the trial
court’s order did not grant a new trial, but merely ordered that the case should
proceed to a damages hearing. (Adkins’s motion to dismiss appeal under
Pa.R.A.P. 1972, 11/1/17 at 4-7.) Ethicon filed a response citing to case law
that holds that this court has jurisdiction pursuant to Rule 311(a)(6) to hear
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Trial court opinion, 11/6/18 at 1.
In their notice of appeal, Ethicon correctly recognizes the interlocutory
nature of the order on appeal and that the only issue it can appeal is the award
of the new trial on the issue of damages.3 (Ethicon’s notice of appeal,
7/19/17.) As such, there was no need for the trial court to enter an order
directing Ethicon to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which it did not. The trial court did, however,
file a Rule 1925(a) opinion. In that opinion, the trial court addressed its award
of a new trial on the issue of damages for design defect and stated that
an interlocutory appeal of an order granting a new trial limited solely to the
issue of damages after the jury has rendered its verdict. (Ethicon’s answer to
motion to dismiss appeal, 11/13/17 at 2-4.) Thereafter, this court entered an
order denying Adkins’s application to dismiss without prejudice to raise the
issue in her appellate brief. Because Adkins did not raise the issue in her brief,
she abandoned her jurisdictional challenge under Rule 311(a)(6).
3 We note that throughout the litigation, Ethicon has challenged the trial
court’s personal jurisdiction over them. We further note that on April 3, 2019,
a panel of this court, in an unpublished memorandum, held that because
Hammons v. Ethicon, 190 A.3d 1248 (Pa.Super. 2018), petition for
allowance of appeal granted,
206 A.3d 495 (Pa. 2019), is binding
precedent, Pennsylvania could exercise personal jurisdiction over Ethicon in
civil actions brought by non-resident plaintiffs who were implanted with one
of eight pelvic devices, including the Device, because the mesh in the eight
devices, including the Device, was knitted by a Pennsylvania company, Secant
Medical, Inc. In re: Pelvic Mesh Litigation, No. 652 EDA 2018, unpublished
memorandum (Pa.Super. filed April 3, 2019). Our supreme court granted
Ethicon’s petition for allowance of appeal in Hammons to determine the
limited issue of “[w]hether the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and 42 Pa.C.S.[A.] § 5322(c)
precludes Pennsylvania from asserting personal jurisdiction over [Ethicon] in
a case brought by an Indiana resident asserting claims under the Indiana
Product Liability Act.” Hammons,
206 A.3d 495.
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[u]pon further examination of the issue, the [trial
c]ourt now believes that a new trial should not be
limited to the issues of compensatory and punitive
damages. Rather, the new trial must also involve re-litigation on the issue of [Ethicon’s] liability for design
defect.
Trial court opinion, 11/6/18 at 4.
Ethicon raises the following issues for our review:
1. Can [Adkins] avoid waiver -- given that she did
not object prior to the discharge of the jury --
by recasting her argument as one that goes to
the manifest weight of the evidence when there
is contradictory testimony and the only way for
[Adkins] to prevail on appeal is to rewrite the
jury instructions as given and the verdict form
as drafted?
2. When [Adkins] alleged multiple “defects” at
trial, and alleged multiple “harms” as a result of
different “defects,” and there was testimony
that challenged each “defect” and its
relationship to each “harm,” do truly
exceptional circumstances exist that would
warrant setting aside the jury’s finding that
there was a “defect” but that the “defect” it
found did not directly and proximately cause
any specific “harm(s)” that the jury credited?
Ethicon’s brief at 4-5.
At the outset, we note that
[i]t is well settled that the grant of a new trial is a
matter within the discretion of the trial court. A new
trial will be granted on the grounds that the verdict is
against the weight of the evidence where the verdict
is so contrary to the evidence it shocks one’s sense of
justice. An appellant is not entitled to a new trial
where the evidence is conflicting and the finder of fact
could have decided either way. . . .
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An abuse of discretion is not merely an
error of judgment, but if in reaching a
conclusion the law is overridden or
misapplied, or the judgment exercised is
manifestly unreasonable, or [the
judgment is] the result of partiality,
prejudice, bias or ill-will, as shown by the
evidence of record, discretion is abused.
We emphasize that an abuse of discretion
may not be found merely because the
appellate court might have reached a
different conclusion, but requires a
showing of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or
such lack of support as to be clearly
erroneous.
. . . . This [c]ourt has recognized that a weight of the
evidence challenge concedes that there was evidence
sufficient to sustain the verdict, but the verdict was
against the weight of the evidence. We may not
substitute our judgment for that of the trial court, we
must only decide whether the trial court abused its
discretion. Credibility issues are determined by the
jury, and this [c]ourt rarely overturns the factual
findings of a jury that are based on determinations of
credibility, because we are confined to review a cold
record.
Fanning v. Davne, 795 A.2d 388, 393-394 (Pa.Super. 2002) (internal
citations omitted).
Ethicon first contends that even though Adkins characterized her
post-trial claim as a weight of the evidence challenge, the true nature of her
challenge is an inconsistent verdict and because she failed to object to the
trial court’s jury instructions, the verdict sheets, and/or to the verdict itself,
she waives her inconsistent verdict challenge on appeal. We disagree.
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In Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974),
our supreme court held that in order to preserve a claim of trial error, a timely
specific objection must be made. Over time, the rule announced in Dilliplaine
has come to be known as the “contemporaneous objection rule” and has been
codified in Pennsylvania Rule of Civil Procedure 227.1(b), which provides:
(b) Except as otherwise provided by Pa.R.E. 103(a),
post-trial relief may not be granted unless the
grounds therefor,
(1) if then available, were raised in
pre-trial proceedings or by motion,
objection, point for charge, request
for findings of fact or conclusions of
law, offer of proof or other
appropriate method at trial; and
(2) are specified in the motion. The
motion shall state how the grounds
were asserted in pre-trial
proceedings or at trial. Grounds not
specified are deemed waived unless
leave is granted upon cause shown
to specify additional grounds.
Pa.R.Civ.P. 227.1(b); see also Stapas v. Giant Eagle, Inc., 197 A.3d 244,
248-249 (Pa. 2018). The note to Rule 227.1(b)(1) states that “[i]f no
objection is made, error which could have been corrected in pre-trial
proceedings or during trial by timely objection may not constitute a ground
for post-trial relief.”
Id. at note.
In order to preserve a weight of the evidence claim, however, a party is
not required to object before the jury is discharged because the claim cannot
be resolved by the jury. Stapas, 197 A.3d at 249-250. Unlike an inaccurate
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jury instruction or an erroneous verdict sheet, which are capable of correction
in pre-trial proceedings or during trial, the manner in which a jury weighs
evidence and arrives at a verdict is incapable of correction. See id. Therefore,
because a weight of the evidence challenge ripens after the verdict, it is
properly raised for the first time in a post-trial motion.
Id.
Here, in her post-trial motion, Adkins contended that because the jury
found that the Device was defectively designed and because the medical
testimony was undisputed that Adkins suffered some injury because of the
Device, the jury’s finding of no causation was against the weight of the
evidence. (Adkins’s motion for post-trial relief, 6/19/17 at 1-2, 5-7.) Clearly,
because that challenge could not be corrected in pre-trial proceedings or
during trial and only ripened after the verdict was announced, it was a
challenge to the weight of the evidence and Adkins properly raised it for the
first time in her post-trial motion.
Ethicon next contends that even though the jury found that the Device
was defective, its finding of no causation was not against the weight of the
evidence. We disagree.
Under Ohio product liability law, which is codified at Ohio Rev. Code
§§ 2396.61-2307.81, the plaintiff bears the burden of proving (1) that there
was, in fact, a defect in the product manufactured and sold by the defendant
that existed at the time the product left the hands of the defendant; and
(2) that the defect directly and proximately caused the plaintiff’s injuries or
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loss. Bonacker v. H.J. Heinz Co., 676 N.E.2d 940, 942 (Ohio App. 8th
1996); see also State Farm Fire & Cas. Co. v. Chrysler Corp.,
523 N.E.2d
489 (Ohio 1988); Ohio Rev. Code § 2307.73(A). Ohio law establishes two
alternative theories for demonstrating design defect – the risk/benefit theory
and the consumer expectation theory. In the underlying litigation, Adkins
proceeded under the risk/benefit theory. Under this theory, a product is
defective in design if, at the time it left the control of the manufacturer, the
foreseeable risks associated with its design exceeded the benefits associated
with that design. Ohio Rev. Code § 2307.75(A). The statute sets forth various
factors to be considered when making this determination. Id. at (B)-(C).
Here, Ethicon contends that because its causation expert testified that
factors other than the Device, such as smoking or a failure to properly use
medication, could have caused or contributed to Adkins’ pain, vaginal
bleeding, and the erosion of the Device, the verdict was not against the weight
of the evidence. We disagree. As a threshold matter, the jury determined
that the Device was defective because its risks outweighed its benefits. The
jury then was required to determine whether the Device directly and
proximately caused Adkins’ injuries. Ethicon’s causation expert agreed on
cross-examination that the Device caused certain of Adkins’ injuries, as
follows:
Q. So these are undisputed facts. You would agree
with me from 2011 to 2012, that the
mesh-related problems Ms. Adkins experienced
were vaginal bleeding, the pelvic pain, vaginal
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pain, palpable mesh, pain with sex, he partner
was scratched, the mesh was exposed in her
vagina, and there was surgery to remove the
mesh?
A. I agree with that.
Notes of testimony, 6/7/17 at 66.
The record clearly demonstrates that it was undisputed that from 2011
to 2012, the erosion of the mesh as found to be a defect by the jury caused
Adkins to suffer the following injuries: vaginal bleeding, pelvic pain, vaginal
pain, palpable mesh, pain with sex, and mesh exposure in her vagina. There
is also no dispute that because the Device caused these injuries, Adkins had
to undergo surgical removal of the Device. Because the evidence did not
conflict with respect to the injuries the Device caused in 2011 to 2012, as well
as the necessity for surgical removal, the jury’s finding that the Device did not
cause any injury to Adkins was against the weight of the evidence. Therefore,
the trial court did not abuse its discretion when it granted a new trial as to
damages.
As set forth above, in its Rule 1925(a) opinion, the trial court opines
that the new trial should not be limited to damages, but must include
re-litigation on liability. (Trial court opinion, 11/6/18 at 4.) We agree. As set
forth by the trial court in its Rule 1925(a) opinion:
Where liability is “vigorously contested,” it cannot be
considered free from doubt unless the defense was
advanced capriciously. See Reid v. Oxendine, 419
A.2d 36, 40-41 (Pa.Super.1980); Gagliano v.
Ditzler, 263 A.2d 319, 320-21 (Pa.Super. 1970) (new
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trial cannot be limited to damages where “both sides
had presented credible, directly conflicting evidence”).
Here, it beyond dispute that [Ethicon] fought tooth
and nail on the issue of liability. They brought
motions, among many other things, for summary
judgment, compulsory nonsuit and directed verdict,
and contested numerous pieces of evidence and
proposed jury instructions presented by [Adkins]. In
addition, they called numerous witnesses of their own
to support their defense that the [Device] was not
defectively designed and did not proximately cause
injury to [Adkins]. The defense claims were colorable
and made in good faith. Therefore, the issue of
liability was not free from doubt and must be tried
again.
Trial court opinion, 11/6/18 at 4-5.
Order affirmed. Case remanded with instructions consistent with this
Opinion. Jurisdiction relinquished.
Panella, P.J. joins this Opinion.
Olson, J. files a Concurring and Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2020
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