In re Bard IVC Filters Products Liability Litigation

          ORDER

          DAVID G CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         After the close of Plaintiffs' evidence at trial, Defendants made a motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. See Doc. 12778. Defendants have filed a written statement of authorities in support of the motion, to which Plaintiffs have responded. Docs. 12775, 12780. For the reasons stated below, the Court will grant the motion in part and deny it in part.

         I. Rule 50 Standard.

         Rule 50 provides that a court may grant judgment as a matter of law if a party has been fully heard on an issue and the court finds that “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue[.]” Fed.R.Civ.P. 50(a)(1). The Rule 50 standard mirrors the standard for granting summary judgment under Rule 56 - “the inquiry under each is the same.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding whether to grant a Rule 50 motion, “the court ‘may not make credibility determinations or weigh the evidence.'” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000)). Rather, the court “must view the evidence in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in that party's favor.” Reeves, 530 U.S. at 150. The test is whether, “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250.

         II. Discussion.

         Defendants seek judgment as a matter of law on (1) loss of consortium, (2) damages for future injuries and medical costs associated with cardiac arrhythmia, (3) strict liability design defect, and (4) punitive damages.

         A. Loss of Consortium.

         Plaintiff Mark Hyde asserts a derivative claim for loss of consortium. Citing Ballard v. Lumbermens Mutual Casualty Co., 148 N.W.2d 65 (Wis. 1967), Defendants argue that there has been no testimony of any impact on the Hydes' marriage, only Mr. Hyde's own worry and concern about his spouse. Trial Tr. at 1837. But Ballard upheld the jury's award of loss of consortium damages to a husband in part because “his wife complains of pain that brings her to tears and causes chronic sleeplessness.” 148 N.W.2d at 72. Ballard found “a distinct and separate item of damages to [the husband], who as the result of the negligence of the defendant's insured [could] no longer enjoy the pleasure of his wife's company[.]” Id. at 71.

         Mr. Hyde testified that his wife does not sleep well and wakes up at night because of anxiety from the IVC filter's failure. Trial Tr. at 1659. He testified that their trip to Wisconsin in 2014 was not a normal family vacation because of their fear that Mrs. Hyde might die due to the fractured strut in her heart. Id. at 1656. He further testified that their drive to Stanford for the removal procedure was a quiet ride. Id. at 1657. This evidence is sufficient for the jury to find that Mr. Hyde was deprived of “the pleasure of his wife's company.” Ballard, 148 N.W.2d at 71. The fact that Mrs. Hyde's injuries did not cause Mr. Hyde to take off work, take on additional household chores, or take over care for their daughter (see Trial Tr. at 1837) may go to the amount of damages, but does not preclude the jury from finding some loss of consortium. Defendants' Rule 50 motion is denied with respect to this claim.

         II. Future Damages for Cardiac Arrhythmia.

         Defendants seek judgment as a matter of law on the issue of future damages for any cardiac arrhythmia Mrs. Hyde may experience, including the future medical cost of an implantable defibrillator. Trial Tr. at 1838-39. Defendants argue that the mere possibility of future injury is not enough under Wisconsin law, and judgment as a matter of law is warranted because Dr. Muehrcke testified that the need for a defibrillator is only a “possibility” if Mrs. Hyde were to develop arrhythmia in the future. Id. at 1838.

         Wisconsin law holds that future injuries and medical care must be established by a medical probability, not a mere possibility. See Bleyer v. Gross, 120 N.W.2d 156, 160 (Wis. 1963) (finding that “an expert opinion expressed in terms of a ‘mere possibility' is insufficient to sustain a finding.”) (citations omitted); McGarrity v. Welch Plumbing Co., 312 N.W.2d 37, 44-45 (Wis. 1981) (“The court of appeals correctly held that an expert opinion expressed in terms of possibility or conjecture is insufficient[.]”); Weber v. White, 681 N.W.2d 137, 143 (Wis. 2004) (“The law does not require mathematical certainty to determine future health care expenses. As long as the decision is based on probability and not possibility, the court can make such an award.”) (citing Bleyer).

         Dr. Muehrcke opined that Mrs. Hyde would need a defibrillator if she were to develop arrhythmia in the future, but ...