United States District Court, D. Arizona
G CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
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
Rule 50 Standard.
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.
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.
Loss of Consortium.
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.
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.
Future Damages for Cardiac Arrhythmia.
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.
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.”)
Muehrcke opined that Mrs. Hyde would need a defibrillator
if she were to develop arrhythmia in the future, but