Punitive damages awards in product liability matters have reached new heights in recent years.[1] Traditionally, product liability defendants have sought to contest liability in the first instance, and establish that the alleged conduct does not warrant punitive damages specifically
Two recent decisions highlight a perhaps lesser-known defense available in some jurisdictions that can limit or even preclude punitive damages where they have previously been awarded for the same product or conduct
In Mixson v. C.R. Bard Inc.,[2] decided in September by the U.S. District Court for the Northern District of Florida, defendants C.R. Bard and Bard Peripheral Vascular Inc. first established that they had been subject to a prior punitive damages award for claims involving the same filter product at issue
They then successfully invoked Florida's statute barring punitive damages in a civil action where the defendant shows that it has been subject to punitive damages "in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages."[3]
After briefing detailing the prior award, the court agreed with the defendants that the relevant exceptions to the statute did not apply, and that the plaintiffs were statutorily prohibited from recovering punitive damages. It thus granted summary judgment striking that relief.[4]
In March, the U.S. District Court for the Southern District of Florida had reached a similar conclusion in Benestad v. Johnson & Johnson. The court granted summary judgment on the plaintiffs' punitive damages claim based on the same Florida statute, given the evidence of prior punitive damages payments against defendants Johnson & Johnson and Ethicon Inc. relating to the vaginal mesh products at issue.[5]
In doing so, the court provided a thorough analysis of choice of law considerations in determining the applicability of the statute as well as the statute's purpose
Given the potential for product liability cases to yield mass torts and multidistrict litigation proceedings that can amass numerous cases against the same defendants for the same products and essential claims, such provisions may be powerful tools to defend against subsequent punitive damages awards. As described below, these types of provisions exist in different forms in certain jurisdictions
Accordingly, careful consideration should be given to the existence of such statutory provisions; to choice of law in determining which state's law applies to the underlying claims and to punitive damages — which may be different — in order for such provisions to be applied; and to requirements for invoking the relevant protections, such as the type of evidence required and when it must be presented
Benestad Explained
To add further context to the nuances applicable to invoking provisions of this nature, a brief examination of the Benestad ruling is useful.[6]
Benestad originated from the In re: Ethicon Inc. Pelvic Repair System Products Liability Litigation MDL pending in the U.S. District Court for the Southern District of West Virginia, and was remanded to the Southern District of Florida for individual case proceedings.[7]
The plaintiffs alleged injuries stemmed from plaintiff Maria Benestad's implantation with Gynecare TVT vaginal tape and Gynecare Prolift pelvic mesh devices. Benestad asserted various product liability claims, as well as a request for an award of punitive damages.[8] Defendants Johnson & Johnson and Ethicon filed motions for summary judgment, including as to punitive damages, in July 2021
As part of that briefing, and in order to apply the relevant statutory provision at issue, the defendants argued that Florida law should apply, since the plaintiff's first implant surgery occurred there and the plaintiffs resided there, as opposed to New Jersey law, where one surgery occurred and where the defendants were located.[9]
Given the conflict between the punitive damages laws of Florida and New Jersey, the court performed a choice of law analysis, and agreed that Florida had the "most significant relationship" to the case, since it is where the initial implant surgery took place, where nearly all the alleged injuries were suffered, and was where the plaintiffs resided and where revision surgeries took place.[10]
Comparing the punitive damages laws in Florida and New Jersey, both states have provisions that insulate manufacturers from punitive damages in drug and device cases when the applicable warnings and instructions are approved or prescribed by the U.S. Food and Drug Administration.[11]
However, Florida has another statutory provision that was directly applicable and provided an additional protection — thus creating the conflict necessitating the choice of law analysis. That provision states:
Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.[12]
The Benestad court recognized that the purpose of this provision in precluding subsequent punitive damages awards is based on the principle that punitive damages are meant "not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar wrongful conduct."[13]
The defendants submitted evidence that punitive damages had been previously awarded against them in claims involving the Gynecare TVT and Prolift devices at issue to establish this provision's applicability to the plaintiffs' claims.[14] They also established that the exceptions in paragraph (b) — that clear and convincing evidence demonstrates that the amount of punitive damages previously awarded was insufficient, and that the defendant's act or course of conduct had not ceased — did not apply.[15]
The plaintiffs provided no evidence as to the former, and regarding the latter, the defendants voluntarily withdrew the devices at issue from the market.[16] This being the case, the court agreed that "punitive damages cannot be awarded under Florida law."[17]
This decision highlights the significant protections these types of statutory limitations may offer in limiting exposure to heightened damages where cases are brought for the same products and claims
Sampling of Additional Provisions Permitting Punitive Damages Setoffs
Florida is relatively unique in the breadth of its protection on this issue. However, other jurisdictions have their own statutory provisions that provide for mandatory or discretionary setoffs based on prior awards of punitive damages
Below are examples of these provisions, as well as certain procedural requirements for invoking them, in order to provide insight into strategic considerations in defending against punitive damages
Mandatory Setoffs
In comparison to Florida's provision that allows evidence of punitive damages awards from any other state or federal court to bar subsequent awards, some other states have more limited statutory provisions that operate as mandatory preclusions to serial punitive damages awards where there have been prior awards of punitive damages in actions within that state
For example, with respect to product liability actions specifically, Georgia's statutory provision allows only one award of punitive damages in the state from an act or omission by the defendant:[18]
Only one award of punitive damages may be recovered in a court in this state from a defendant for any act or omission if the cause of action arises from product liability, regardless of the number of causes of action which may arise from such act or omission.[19]
This is significant, as there are otherwise no limits on punitive damages amounts in tort cases arising from product liability in Georgia.[20]
Oklahoma has a similar in-state provision applicable to awards of punitive damages based on a finding that the defendant acted intentionally and with malice, classified as Category II punitive damages awards under the statute.[21]
There, the trial court is directed to reduce an award for punitive damages under this subsection "by the amount it finds the defendant … previously paid as a result of all punitive damage verdicts entered in any court of this state for the same conduct by the defendant."[22]
Discretionary Setoffs
Certain other jurisdictions have provisions that are not mandatory setoffs, but permit the court to grant discretionary award reduction based on prior punitive damages payments. For example, Missouri has a provision that allows the defendant to file a post-trial motion requesting that the court reduce the punitive damages award by the amount previously paid by the defendant for the same conduct.[23]
In comparison to the Georgia and Oklahoma provisions above, this provision contains no limitation that the previously paid punitive damages must be for damages awarded within Missouri.[24] The defendant bears the burden on all issues regarding such credit, with either party being able to admit evidence at any hearing held on the motion.[25]
The court then decides the motion "within the time and according to procedures applicable to motions for a new trial."[26] As with other provisions referenced, certain exceptions to this credit also apply
For instance, even if the entitlement is established, if the court finds that the "the defendant unreasonably continued the conduct after acquiring actual knowledge of the dangerous nature of such conduct," or that the laws governing punitive damages in the court where the prior award was entered deviate substantially and materially from the law of Missouri, and "the nature of such deviation provides a good cause for disallowance of the credit based on the public policy of Missouri," then the court may disallow all or part of the credit that would otherwise be available.[27]
Punitive damages statutes in other states such as Oregon and Tennessee also allow defendants to argue for reduction on the basis of prior punitive damages awards. For example, under Oregon's statute, the court — on a motion from the defendant — can consider the amount of previous awards of punitive damages for the same conduct in determining a reduction.[28]
Tennessee's provision also provides that prior awards of punitive damages can serve as a factor for the trier of fact to consider when evaluating the amount of punitive damages.[29]
In Kansas, if punitive damages are allowed by the trier of fact, the court conducts a separate proceeding to determine the amount of such damages and can consider the existence of "other damages and punishment imposed … as a result of the misconduct" — including other punitive damage awards to persons in situations that are similar to those of the instant plaintiff.[30]
Accordingly, while other jurisdictions may not appear to have as overt a protection as Florida, the existence of prior punitive damages awards for the same conduct and products can often be utilized to argue that the punishment and deterrent effects such damages are meant to produce has already been accomplished
Practice Pointers for Invoking Statutory Provisions
As Benestad, Mixson and the specific statutory provisions examined above reveal, there are multiple considerations for successfully invoking protections against subsequent punitive damages awards, including (1) choice of law, (2) the evidence required to establish that the provision applies, and to whom it must be presented, and (3) the timing for seeking the protection
Choice of Law
Benestad and Mixson make clear that seeking relief under provisions barring subsequent punitive damages awards requires (1) analysis of the available defenses in applicable jurisdictions governing the claims at issue, and (2) choice of law analysis
Going a step further, even where one jurisdiction's law may govern the substantive claims in the case, it is not uncommon for a different jurisdiction's laws to be applied to punitive damages based, for instance, on the location where the conduct causing the harm occurred or where the alleged injuries were sustained
These considerations should be thought of early, in order to develop discovery and information needed to establish that the choice of law in the desired jurisdiction is indeed appropriate
Evidence Required
It is also important to determine the evidence required to establish compliance with the relevant provisions limiting subsequent punitive damages awards
For instance, where matters do not emanate from a consolidated proceeding covering only like products and claims such as a multidistrict litigation, consideration should be given to how to demonstrate that the allegations in the subsequent suit are for the same conduct. Pleadings, depositions or declarations may be needed to confirm factual overlap of claims or conduct where it is not otherwise obvious in order to prove that the claims are, for example, for the same course of conduct.[31]
Additionally, consideration should be given to what proof is needed not only to establish prior awards, but to prove how much was paid in punitive damages in jurisdictions requiring such proof
Further, if additional claims may be brought and parties wish to invoke provisions barring subsequent punitive damages awards in the future, consideration should be given to whether settlement agreements and releases incorporate language confirming specific portions or amounts of the settlement are attributable to punitive damages, in order to conclusively establish amounts paid in punitive damages specifically
Timing for Invoking Statutory Provisions
As the provisions highlighted indicate by their terms, they each have differing requirements for when they may be invoked. Timing requirements should be carefully reviewed to ensure defenses based on applicable provisions are raised within the required timeframe
For instance, Florida's statute requires that the proof barring subsequent punitive damages awards be made before trial, and that it was successfully utilized at the summary judgment phase. Missouri, by contrast, offers a post-reduction setoff that would be accomplished via a post-trial motion after a verdict awarding punitive damages
Where evidence is required to be offered to the jury for consideration on reducing punitive damages based on the existence of prior awards to punish and deter the same conduct — for example, in Tennessee — consideration should also be given to seeking bifurcation of trial as to liability and punitive damages, to prevent the jury from learning about prior verdicts at the liability phase
Thus, even in scenarios where reduction may occur post-trial, consideration of the mechanics for utilizing a relevant setoff statute will require strategic pretrial planning. Successful application of these provisions can be particularly useful as products liability matters continue to be litigated on an increasingly large scale, and in consolidated settings, with the potential for significant verdicts.
References
[1] For instance, in May, a jury awarded a plaintiff $5 million in compensatory damages, along with $72.5 million in punitive damages, against 3M Co. for claims of hearing loss due to allegedly ineffective combat earplugs. See Beal v. 3M Co. 
, N.D. Fla., No. 7:20-cv-00006, verdict May 20, 2022. And recent talc verdicts have yielded record-breaking punitive damages verdicts in the billions for claims alleging that products contained cancer-causing asbestos. See, e.g., Ingham v. Johnson & Johnson, No. 1522-CC10417-01 (Mo. Cir. Ct. Dec. 19, 2018) (award of $4.69 billion verdict in an underlying talc case, which was reversed in part on appeal, with the award reduced to $2.1 billion, including an award of over $1.6 billion in punitive damages involving 20 claimants), cert. denied 141 S. Ct. 2716 (2021).
[2] No. 1:21-cv-30-AW-MJF, 2022 WL 4364153 (N.D. Fla. Sept. 16, 2022).
[3] Fla. Stat. § 768.73(2)(a).
[4] Mixson v. C.R. Bard Inc. , 2022 WL 4364153 at *5.
[5] Benestad v. Johnson & Johnson , 2022 U.S. Dist. LEXIS 55502 (S.D. Fla. Mar. 28, 2022).
[6] Reference to this decision is made purely because it provided a more extensive analysis of the statutory provision at bar, as compared to Mixson, which reached the same essential conclusion in granting summary judgment as to the plaintiffs' punitive damages claim after a choice of law analysis and a determination that the statutory exceptions did not apply.
[7] See In re: Ethicon Inc. Pelvic Repair System Products Liability Litigation , 2022 U.S. Dist. LEXIS 55502 at *2.
[8] Id. at *3.
[9] Id. at *15.
[10] Id. at *16-17.
[11] See N.J. Stat. §2A:58C-4; see also Fla. Stat. §768.1256.
[12] Fla. Stat. 768.73(2)(a).
[13] Benestad, 2022 U.S. Dist. LEXIS 55502, *24, citing, e.g., Owens-Corning Fiberglass Corp. v. Ballard , 749 So.2d 483, 485 (Fla. 1999).
[14] Id. at *24-25.
[15] Id. at *25.
[16] Id. at *26.
[17] Id. at **26-27.
[18] Ga. Code § 51-12-5.1(e)(1).
[19] It bears noting that in Georgia, this "one award" rule has operated in one instance to uphold the reasonableness of a sizable punitive damages award, on the reasoning that subsequent awards within the state would be barred. See Gen. Motors Corp. v. Moseley , 213 Ga. App. 875, 886, 447 S.E.2d 302, 312 (1994); overruled on other grounds by Williams v. Harvey , 311 Ga. 439, 858 S.E.2d 479 (2021), and abrogated by Webster v. Boyett , 269 Ga. 191, 496 S.E.2d 459 (1998).
[20] Id.
[21] Okla. Stat. Ann. Tit. 23 § 9.1(C)(2)(c).
[22] Id.
[23] See Rev. Stat. Mo. § 510.263(4).
[24] Id.
[25] Id.
[26] Id.
[27] Rev. Stat. Mo. § 510.263(4).
[28] O.R.S. 31.730(3).
[29] Tenn. Code Ann. § 29-39-104.
[30] K.S.A. 60-3701(b)(7).
[31] Fla. Stat. § 768.73(2)(a).
Reprinted with permission of Law360.
