         Case: 16-12162   Date Filed: 03/20/2017   Page: 1 of 31


                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-12162
                     ________________________

               D.C. Docket Nos. 1:12-md-02329-WSD,
                       1:13-cv-00297-WSD


ROBYN CHRISTIANSEN,
GENE CHRISTIANSEN,


                                                         Plaintiffs-Appellees,

versus


WRIGHT MEDICAL TECHNOLOGY, INC.,


                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                           (March 20, 2017)
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Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE∗, District Judge.

BARTLE, District Judge:

       Defendant Wright Medical Technology, Inc. appeals from the entry against

it of a $2,100,000 judgment in this products liability case following a jury verdict

in favor of plaintiff Robyn Christiansen 1 and after the district court’s denial in part

of the defendant’s renewed motion for judgment as a matter of law or a new trial. 2

       The trial in this case was the first bellwether trial in a multidistrict litigation

involving over 500 cases concerning the Wright Medical Conserve

“metal-on-metal” hip replacement device designed and manufactured by the

defendant. At trial, Christiansen alleged that Wright Medical was liable for design

defect based on strict liability and negligence. She also brought claims of

fraudulent misrepresentation, negligent misrepresentation, and fraudulent

concealment related to the hip replacement device. She asserted that metal debris

from the hip replacement device had caused her physical impairment and severe

pain. There was no dispute that Christiansen received the hip replacement device

in Utah and that Utah law applied.

       ∗
       Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.

1. Before trial, Gene Christiansen abandoned his loss of consortium claim. That claim is not at
issue in this appeal.

2. The district court granted in part the motion of Wright Medical to the extent that it sought a
reduction in punitive damages from $10,000,000 to $1,100,000. The motion was otherwise
denied.
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      Wright Medical now contends that the district court erred in ordering the

jury to continue deliberations after the jury had already begun to deliver its verdict.

Wright Medical also argues that the district court erred in its instructions on Utah’s

products liability law with regard to the unavoidably unsafe product defense in

Comment k of Section 402A of the Restatement (Second) of Torts.

                                          I.

      The trial in this matter began on November 9, 2015, and jury deliberations

commenced on November 19, 2015. On the second day of deliberations, the jury

notified the district court that it had reached a unanimous verdict. The district

judge reviewed the verdict sheet in the presence of the jury, and, at his instruction,

the deputy clerk then began to read the verdict. The first question, denominated as

Question 1A, stated:

      Do you find by a preponderance of the evidence that Wright
      Medical’s hip replacement device was defectively designed?

The jury answered “No.” The instruction on the verdict sheet immediately below

the jury’s answer read:

      If you answered NO to Question 1A, stop, and sign and date this
      form. If you answered YES to Question 1A, proceed to Question
      1B.

(Bolded text in original). Even though it had answered “No,” the jury did not stop

there. It made nine other findings on the verdict sheet, awarded compensatory and



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punitive damages, and apportioned liability between the parties. 3 It found that

Wright Medical was liable for negligent misrepresentation and awarded $662,500.



3. In full, the verdict sheet included the following questions and answers. Page one read:

       Design Defect

       1A. Do you find by a preponderance of the evidence that Wright Medical’s hip
       replacement device was defectively designed?

       [No.]

       If you answered NO to Question 1A, stop, and sign and date this form. If you
       answered YES to Question 1A, proceed to Question 1B.

       1B. Do you find by a preponderance of the evidence that the hip replacement
       device was unreasonably dangerous?

       [No response indicated.]

       If you answered NO to Question 1B, stop, and sign and date this form. If you
       answered YES to Question 1B, proceed to Question 1C.

Although the questions continued onto the following page, the foreperson signed and dated the
bottom of the first page.

Page two of the verdict sheet, contained the following questions and answers:

       1C. Do you find by a preponderance of the evidence that when Wright Medical
       made the hip replacement device, it could not be made safe for its intended use
       even applying the best available testing and research, and that the benefit of the
       hip replacement device justified its risk?

       [No response indicated.]

       Proceed to Question 1D.

       1D. Do you find by a preponderance of the evidence that the design defect was
       present at the time Wright Medical sold the hip replacement device that was
       implanted in Plaintiff?

       [No.]


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       If you answered NO to Question 1D, stop, and sign and date this form. If you
       answered YES to Question 1D, proceed to Question 1E.

       1E. Do you find by a preponderance of the evidence that the design defect was a
       cause of harm to Plaintiff?

       [No response indicated.]

       If you answered NO to Question 1E, stop, and sign and date this form. If you
       answered YES to Question 1E, proceed to Question 1F.

       1F. Do you find by a preponderance of the evidence that Plaintiff is entitled to
       recover compensatory damages?

       [No response indicated.]

       If your answer is “Yes,” what amount? [No response indicated.]

       Proceed to Question 2A.

Again, although the questions continued onto the next page, the foreperson signed and dated the
bottom of the second page.

The verdict sheet continued:

       Fraudulent Misrepresentation

       2A. Do you find by clear and convincing evidence that Wright Medical made
       fraudulent misrepresentations about the hip replacement device implanted in
       Plaintiff?

       [No.]

       If you answered NO to Question 2A, proceed to Question 3A. If you
       answered YES to Question 2A, proceed to Question 2B.

       2B. Do you find by clear and convincing evidence that Wright Medical’s
       fraudulent misrepresentations about the hip replacement device implanted in
       Plaintiff was a cause of harm to Plaintiff?

       [No response indicated.]

       If you answered NO to Question 2B, proceed to Question 3A. If you
       answered YES to Question 2B, proceed to Question 2C.
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2C. Do you award damages in addition to any amount awarded in response to
Question 1F?

[No response indicated].

If your answer is “Yes,” in what additional amount? [No response indicated.]

Proceed to Question 3A.

Negligent Misrepresentation

3A. Do you find by clear and convincing evidence that Wright Medical made
negligent misrepresentations as to the hip replacement device implanted in
Plaintiff?

[Yes.]

If you answered NO to Question 3A, proceed to Question 4A. If you
answered YES to Question 3A, proceed to Question 3B.

3B. Do you find by clear and convincing evidence that Wright Medical’s
negligent misrepresentations as to the hip replacement device implanted in
Plaintiff was a cause of harm to Plaintiff?

[Yes.]

If you answered NO to Question 3B, proceed to Question 4A. If you
answered YES to Question 3B, proceed to Question 3C.

3C. Do you award damages in addition to any amount awarded in response to
Question 1F, and any additional amount you may have awarded in Question 2C?

[Yes.]

If your answer is “Yes,” in what additional amount? [$662,500]

Proceed to Question 4A.

Fraudulent Concealment

4A. Do you find by clear and convincing evidence that Wright Medical
fraudulently concealed or failed to disclose an important fact or facts to Plaintiff
or Dr. Rasmussen about the hip replacement device implanted in Plaintiff?
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[No.]

If you answered NO to Question 4A, proceed to Question 5A. If you
answered YES to Question 4A, proceed to Question 4B.

4B. Do you find by clear and convincing evidence that Wright Medical’s
fraudulent concealment or failure to disclose an important fact or facts to Plaintiff
or Dr. Ramsussen [sic] about the hip replacement device implanted in Plaintiff
was a cause of harm to Plaintiff?

[No response indicated.]

If you answered NO to Question 4B, proceed to Question 5A. If you
answered YES to Question 4B, proceed to Question 4C.

4C. If your answer is “Yes,” do you award damages in addition to any amount
awarded in response to Question 1F, and any additional amount you may have
awarded in Questions 2C and 3C?

[No response indicated.]

If your answer is “Yes,” in what additional amount? [No response indicated.]

Proceed to Question 5A.

Punitive Damages

5A. Do you find by clear and convincing evidence that Wright Medical’s
conduct: (i) was willful and malicious; (ii) was intentionally fraudulent; or
(iii) manifested a knowing and reckless indifference towards, and a disregard of,
the rights of others, including Ms. Christiansen for any of the below conduct?

[check all that apply]

In making misrepresentations as to the hip replacement device? [Checked.]

In fraudulently concealing information as to the hip replacement device? [Not
checked.]

If you checked either of the above, what, if any, amount of punitive damages, in
addition to any other damages you may have awarded, do you award against
Wright Medical?


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It also found that, in making those misrepresentations, the defendant’s conduct was



       [$2,500,000]

       Proceed to Question 6A.

       Comparative Fault

       6A. Was Plaintiff also at fault in causing Plaintiff’s harm?

       [Yes.]

       If you answered NO to Question 6A, stop, and sign and date this form. If you
       answered YES to Question 6A, please state below what percentage each of
       the below parties is responsible for Plaintiff’s harm.

       Wright Medical: [78.70%]

       Plaintiff: [21.24%]

Although there was still one page remaining in the verdict sheet, the foreperson signed and dated
the bottom of this page.

The final page of the verdict sheet read:

       Special Factual Findings

       The Court requests that you make special factual findings regarding your answer
       in response to Question 1C. If you answered “No” to Question 1C, please
       indicate below which facts Wright Medical failed to prove by a preponderance of
       the evidence.

       [check all that apply]

       When the hip replacement device was made, it could not be made safe for its
       intended use even applying the best available testing and research. [Not checked.]

       The benefit of the hip replacement device justified its risk. [Not checked.]

       The hip replacement device, properly manufactured, was accompanied by proper
       directions and warnings. [Checked.]

(Bolded text in original). The bottom of the verdict sheet was signed and dated by the foreperson
in the space designated for signature.
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“willful and malicious,” “intentionally fraudulent,” or “manifested a knowing and

reckless indifference towards, and a disregard of, the rights of others, including

Ms. Christiansen.” It awarded $2,500,000 in punitive damages. With respect to

the question on the verdict sheet about comparative fault, it found Wright Medical

78.7% at fault and Christiansen 21.24% at fault.4

       Before the deputy clerk could proceed beyond the answer to Question 1A,

the district court realized that the jury’s responses on the verdict sheet were

inconsistent and halted the further reading of the verdict sheet. The court

instructed the jury to “take the form back into the jury room, and please carefully

read the instructions that are given to you after—beginning on page one and

reevaluate whether you have properly filled out the form.”

       After the jury had returned to the jury room, the court told counsel that the

jury’s responses had not conformed to the court’s instructions:

              We all agreed on the jury form and we all agreed on the
              instructions and we all agreed at the charge conference
              that certain findings precluded further findings, and I
              need to make sure that they understand that. And then I
              need to make sure that, having understood that, that they
              complete the form in accordance with the instructions,
              and I’m going to have them complete the form again.
              But I think they need that—they need to be told that the
              instructions which have been agreed upon by counsel for
              both parties are essential to their findings. So that’s what
              I intend to do.


4. The jury’s findings with regard to comparative fault do not total 100%.
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        Thereafter, the court had the jury return to the courtroom. It explained to the

jury:

        Ladies and gentlemen, I want to tell you something and then ask you
        to go back into the jury room and do whatever you think in your
        considered judgment is necessary for you to reach your verdict,
        including after what I say, if you think you need to deliberate more, I
        want you to do that.

        But let me explain this jury form. The jury form was created to walk
        you through findings that you are required to make and findings that
        you are not supposed to make if you make certain other findings, and
        that’s why all the instructions are in there.

        And so when it says—and you have to follow the instructions
        specifically because they are an essential part of the verdict form and
        the way that you are supposed to reach your verdict. And from what
        my reading was that you—is that you needed to—I needed to make
        sure that you went back, and I want you to go back again, and make
        sure you fully understand the instructions.

The court suggested that the jury reread the verdict sheet out loud to ensure that all

members of the jury understood the instructions. It explained that “what

everybody wants here is to make sure that we have given you the proper

instructions and tools to reach a verdict, which is what everybody wants.”

        Wright Medical moved to have the court accept the jury’s finding in answer

to Question 1A that there was no design defect and enter judgment in its favor and

against the plaintiff. The court denied the motion. It concluded “that the jury, in

my considered legal and practical opinion, they did not understand the instructions

in the form.”


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      The jury was directed to resume deliberations. Minutes later, it informed the

court that it did not understand the verdict sheet and sought further explanation.

The court acknowledged that the verdict sheet was not “drafted in a way that, in

your first working with it, that you fully understood it.” With the consent of

counsel, the court revised the verdict sheet instructions to clarify that the jury

should not complete the remainder of the sheet if it answered “No” to Question 1A.

The instruction now stated:

      If you answered NO to Question 1A, stop. Do not complete the
      remainder of the form. The foreperson should sign and date the
      form and tell the Court Security Officer you have a verdict. If
      you answered YES to Question 1A, proceed to Question 1B.

(Bolded text in original).

      The following explanatory note was attached to the revised verdict sheet and

delivered to the jury:

      Ladies and Gentleman:

      In response to your comment that you do not understand the verdict
      form, I have revised the form by adding clarifying language in certain
      of the instructions. The instructions where clarifying language was
      added are identified with an asterisk.

      If this language does not answer your questions about how to
      complete the form, please tell the Court Security Officer so I can
      respond before you continue your deliberations.

      Finally, if in following the instructions you were required to answer
      Question 1C, please make the Special Factual Findings on page 7. If
      you ended up not answering Question 1C, do not make the Special
      Factual Findings on page 7.
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The court also recharged the jury, which thereafter resumed deliberations.

       After approximately one half day of deliberations, the jury informed the

court that it was unable to reach a verdict. The court advised it to continue

deliberations. The following day, one of the jurors submitted a note to the court in

which the juror reported that deliberations were taking an “extensively long time as

one of the jurors doesn’t look at the evidence through the perspective of the law.”

A few hours later, the foreperson sent a note which stated: “We are unable to

provide a verdict and complete the verdict form. We have one juror that has

decided no longer to participate in the jury and the process to reach a unanimous

verdict.”

       In the presence of counsel, the court interviewed the juror who had been

accused of refusing to deliberate. 5 After the juror had left the room, counsel and

the court discussed his testimony, and the court reviewed the transcript. At the

request of counsel, the court asked the juror to return to the room to answer

additional clarifying questions:

       THE COURT: I went back and read the question I asked you, and I
       didn’t do a very good job of that. So I’m going to try again. Let me
       just be a little bit more careful. Let’s go back to the jury form. You
       obviously read the jury form?

       JUROR: Yes, sir.


5. The court also interviewed the foreperson and the juror who had submitted the first note.
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THE COURT: And the jury form basically has some questions, and
the jury is supposed to answer yes or no to those questions. And you
have seen those questions that are required to be answered yes or no?

JUROR: Yes, sir.

THE COURT: And then after most of the questions, there is an
instruction in bold. You have seen those, haven't you?

JUROR: Yes, sir.

THE COURT: And what it does is it looks at the answer to the
question right above the instruction, and it will say if you answered
yes, then it instructs you to do specific things. If you answer the
question no, it tells you to do something different.

JUROR: Exactly.

THE COURT: So I don’t want to focus on any specific question, but
has there been during your deliberations a question where you have
voted with the others on how to answer the question—have there been
times when you agreed with the answer to the question? Has that
happened?

JUROR: Yes, it has.

THE COURT: And then when you go down and look at the
instruction, is the answer to that question an instruction that you
disagree with and that you haven’t been able to follow?

JUROR: Haven’t been able to follow? In some instance, yes.

THE COURT: And is that because you disagree that the instruction
would lead to a result that you think should happen?

JUROR: My answer is different from what some of the others had,
yes.

THE COURT: And when you say your answer—you answered
differently, there are others that say here is what the instruction says,
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       this is what we have to do, is it your position is I know that’s what the
       instruction says, but I can’t agree with it because I think that would
       lead to the wrong result?

       JUROR: Yes, sir.

The court determined that the juror was unwilling to follow the instructions on the

verdict sheet. The juror was dismissed without objection from either party.

       The seven remaining members of the jury then returned to the jury room.

Thirty minutes later, the jury notified the court that it had reached a verdict. 6 In


6. In full, the verdict sheet stated the following:

       Design Defect

       1A. Do you find by a preponderance of the evidence that Wright Medical’s hip
       replacement device was defectively designed?

       [Yes.]

       *If you answered NO to Question 1A, stop. Do not complete the remainder
       of the form. The foreperson should sign and date the form and tell the Court
       Security Officer you have a verdict. If you answered YES to Question 1A,
       proceed to Question 1B.

       1B. Do you find by a preponderance of the evidence that the hip replacement
       device was unreasonably dangerous?

       [Yes.]

       *If you answered NO to Question 1B, stop. Do not complete the remainder
       of the form. The foreperson should sign and date the form and tell the Court
       Security Officer you have a verdict. If you answered YES to Question 1B,
       proceed to Question 1C.

       1C. Do you find by a preponderance of the evidence that when Wright Medical
       made the hip replacement device, it could not be made safe for its intended use
       even applying the best available testing and research, and that the benefit of the
       hip replacement device justified its risk?


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       [No.]

       Proceed to Question 1D.

       1D. Do you find by a preponderance of the evidence that the design defect was
       present at the time Wright Medical sold the hip replacement device that was
       implanted in Plaintiff?

       [Yes.]

       *If you answered NO to Question 1D, stop. Do not complete the remainder
       of the form. The foreperson should sign and date the form and tell the Court
       Security Officer you have a verdict. If you answered YES to Question 1D,
       proceed to Question 1E.

       1E. Do you find by a preponderance of the evidence that the design defect was a
       cause of harm to Plaintiff?

       [Yes.]

       *If you answered NO to Question 1E, stop. Do not complete the remainder
       of the form. The foreperson should sign and date the form and tell the Court
       Security Officer you have a verdict. If you answered YES to Question 1E,
       proceed to Question 1F.

       1F. Do you find by a preponderance of the evidence that Plaintiff is entitled to
       recover compensatory damages?

       [Yes.]

       If your answer is “Yes,” what amount? [$550,000]

The foreperson signed her initials next to the damages award. The verdict sheet continued:

       Proceed to Question 2A.

       Fraudulent Misrepresentation

       2A. Do you find by clear and convincing evidence that Wright Medical made
       fraudulent misrepresentations about the hip replacement device implanted in
       Plaintiff?

       [No.]


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If you answered NO to Question 2A, proceed to Question 3A. If you
answered YES to Question 2A, proceed to Question 2B.

2B. Do you find by clear and convincing evidence that Wright Medical’s
fraudulent misrepresentations about the hip replacement device implanted in
Plaintiff was a cause of harm to Plaintiff?

[No response indicated.]

If you answered NO to Question 2B, proceed to Question 3A. If you
answered YES to Question 2B, proceed to Question 2C.

2C. Do you award damages in addition to any amount awarded in response to
Question 1F?

[No response indicated].

If your answer is “Yes,” in what additional amount? [No response indicated.]

Proceed to Question 3A.

Negligent Misrepresentation

3A. Do you find by clear and convincing evidence that Wright Medical made
negligent misrepresentations as to the hip replacement device implanted in
Plaintiff?

[Yes.]

If you answered NO to Question 3A, proceed to Question 4A. If you
answered YES to Question 3A, proceed to Question 3B.

3B. Do you find by clear and convincing evidence that Wright Medical’s
negligent misrepresentations as to the hip replacement device implanted in
Plaintiff was a cause of harm to Plaintiff?

[Yes.]

If you answered NO to Question 3B, proceed to Question 4A. If you
answered YES to Question 3B, proceed to Question 3C.

3C. Do you award damages in addition to any amount awarded in response to
Question 1F, and any additional amount you may have awarded in Question 2C?


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[Yes.]

If your answer is “Yes,” in what additional amount? [$450,000]

Proceed to Question 4A.

Fraudulent Concealment

4A. Do you find by clear and convincing evidence that Wright Medical
fraudulently concealed or failed to disclose an important fact or facts to Plaintiff
or Dr. Rasmussen about the hip replacement device implanted in Plaintiff?

[No.]

If you answered NO to Question 4A, proceed to Question 5A. If you
answered YES to Question 4A, proceed to Question 4B.

4B. Do you find by clear and convincing evidence that Wright Medical’s
fraudulent concealment or failure to disclose an important fact or facts to Plaintiff
or Dr. Ramsussen [sic] about the hip replacement device implanted in Plaintiff
was a cause of harm to Plaintiff?

[No response indicated.]

If you answered NO to Question 4B, proceed to Question 5A. If you
answered YES to Question 4B, proceed to Question 4C.

4C. If your answer is “Yes,” do you award damages in addition to any amount
awarded in response to Question 1F, and any additional amount you may have
awarded in Questions 2C and 3C?

[No response indicated.]

If your answer is “Yes,” in what additional amount? [No response indicated.]

Proceed to Question 5A.

Punitive Damages

5A. Do you find by clear and convincing evidence that Wright Medical’s
conduct: (i) was willful and malicious; (ii) was intentionally fraudulent; or
(iii) manifested a knowing and reckless indifference towards, and a disregard of,
the rights of others, including Ms. Christiansen for any of the below conduct?


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[check all that apply]

In making misrepresentations as to the hip replacement device? [Checked.]

In fraudulently concealing information as to the hip replacement device? [Not
checked.]

If you checked either of the above, what, if any, amount of punitive damages, in
addition to any other damages you may have awarded, do you award against
Wright Medical?

[$10,000,000]

Proceed to Question 6A.

Comparative Fault

6A. Was Plaintiff also at fault in causing Plaintiff’s harm?

[No.]

*If you answered NO to Question 6A, make the Special Factual Findings on
Page 7 if required. After doing so, sign and date this form because your
verdict is complete. If you answered YES to Question 6A, please state below
what percentage each of the below parties is responsible for Plaintiff’s harm.
After doing so, please make the Special Factual Findings on Page 7 if
required.

Wright Medical: [No response indicated.]

Plaintiff: [No response indicated.]

Special Factual Findings

The Court requests that you make special factual findings regarding your answer
in response to Question 1C. If you answered “No” to Question 1C, please
indicate below which facts Wright Medical failed to prove by a preponderance of
the evidence.

[check all that apply]

When the hip replacement device was made, it could not be made safe for its
intended use even applying the best available testing and research. [Not checked.]


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contrast to its answer on the first verdict sheet, the jury found in response to

Question 1A that the hip replacement device was defectively designed and

unreasonably dangerous. It determined that the design defect was present at the

time that Wright Medical sold the device to the plaintiff and caused her harm. In

this regard, it awarded her $550,000 in damages. The jury also found that Wright

Medical had not met its burden to prove that the device could not be made safe for

its intended use, even applying the best available testing and research, and that the

benefit of the hip replacement device justified the risk. In response to “Special

Factual Findings” regarding this conclusion, the jury indicated that Wright Medical

had failed to prove that the hip replacement device, properly manufactured, was

accompanied by proper directions and warnings.

       The jury further determined that Wright Medical had made a negligent

misrepresentation about the device and awarded $450,000 in additional damages.

It also found that, in making those misrepresentations, the defendant’s conduct was

“willful and malicious,” “intentionally fraudulent,” or “manifested a knowing and

reckless indifference towards, and a disregard of, the rights of others, including



       The benefit of the hip replacement device justified its risk. [Not checked.]

       The hip replacement device, properly manufactured, was accompanied by proper
       directions and warnings. [Checked.]

(Bolded text in original). The bottom of the verdict sheet was signed and dated by the
foreperson in the space designated for signature.
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Ms. Christiansen.” It awarded $10,000,000 in punitive damages. It decided that

Christiansen was not at fault to any degree.

      After the verdict was announced in the courtroom, each member of the jury

was polled. The district court accepted the unanimous verdict. Judgment was

initially entered in the amount of $1,000,000 in compensatory damages and

$10,000,000 in punitive damages. Wright Medical filed a post-trial “renewed

motion for judgment as a matter of law, or in the alternative, motion for new trial,

and to amend the judgment.” In disposing of that motion, the court reduced the

award of punitive damages to $1,100,000.

                                           II.

      Wright Medical first argues that the district court erred in failing to grant

judgment as a matter of law in its favor based on the jury’s finding on the original

verdict sheet in its answer to Question 1A that there was no design defect because

the jury was instructed to proceed no further in the event of a “no” answer. Wright

Medical contends that the district court was required to accept the jury’s finding

that there was no design defect and deem any further answers by the jury to

subsequent questions to be nullities rather than inconsistencies. In the alternative,

it asserts that the district court should have ordered a new trial.

      We first consider the district court’s determination that the answers on the

original verdict sheet were inconsistent. Pursuant to Rule 49 of the Federal Rules


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of Civil Procedure,7 the district court has authority to identify an inconsistency on

a general verdict sheet containing answers to special interrogatories and either


7. In full, Rule 49 provides:

        (a) Special Verdict.

               (1) In General. The court may require a jury to return only a special
               verdict in the form of a special written finding on each issue of fact. The
               court may do so by:

                       (A) submitting written questions susceptible of a categorical or
                       other brief answer;

                       (B) submitting written forms of the special findings that might
                       properly be made under the pleadings and evidence; or

                       (C) using any other method that the court considers appropriate.

               (2) Instructions. The court must give the instructions and explanations
               necessary to enable the jury to make its findings on each submitted issue.

               (3) Issues Not Submitted. A party waives the right to a jury trial on any
               issue of fact raised by the pleadings or evidence but not submitted to the
               jury unless, before the jury retires, the party demands its submission to the
               jury. If the party does not demand submission, the court may make a
               finding on the issue. If the court makes no finding, it is considered to have
               made a finding consistent with its judgment on the special verdict.

       (b) General Verdict with Answers to Written Questions.

               (1) In General. The court may submit to the jury forms for a general
               verdict, together with written questions on one or more issues of fact that
               the jury must decide. The court must give the instructions and
               explanations necessary to enable the jury to render a general verdict and
               answer the questions in writing, and must direct the jury to do both.

               (2) Verdict and Answers Consistent. When the general verdict and the
               answers are consistent, the court must approve, for entry under Rule 58, an
               appropriate judgment on the verdict and answers.

               (3) Answers Inconsistent with the Verdict. When the answers are
               consistent with each other but one or more is inconsistent with the general
               verdict, the court may:
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enter judgment, order further deliberations, or order a new trial. 8 See Fed. R. Civ.

P. 49(b). “While the district court’s application of Rule 49(b) is reviewed only for

abuse of discretion, its threshold determination that the jury returned a general

verdict inconsistent with its answers to special interrogatories is a mixed question

of law and fact . . . subject to plenary review.” Wilbur v. Corr. Servs. Corp.,

393 F.3d 1192, 1199 (11th Cir. 2004) (citations omitted). This Court recently

summarized the relevant legal principles in Reider v. Phillip Morris USA, Inc.,



                       (A) approve, for entry under Rule 58, an appropriate judgment
                       according to the answers, notwithstanding the general verdict;

                       (B) direct the jury to further consider its answers and verdict; or

                       (C) order a new trial.

               (4) Answers Inconsistent with Each Other and the Verdict. When the
               answers are inconsistent with each other and one or more is also
               inconsistent with the general verdict, judgment must not be entered;
               instead, the court must direct the jury to further consider its answers and
               verdict, or must order a new trial.

Fed. R. Civ. P. 49.

8. Wright Medical contends that the jury delivered a special verdict, rather than a general verdict
with written answers to special interrogatories. “Categorizing a verdict as a general verdict, or as
a special verdict under Rule 49(a), or as a general verdict with special interrogatories under Rule
49(b) should be—but too often seems not—a simple matter.” Mason v. Ford Motor Co.,
307 F.3d 1271, 1274–75 (11th Cir. 2002). “With a special verdict, the jury’s sole function is to
determine the facts; the jury needs no instruction on the law because the court applies the law to
the facts as found by the jury.” Id. at 1274. In contrast, here, the district court delivered
“instructions to the jury on the law to be applied to the jury’s factual findings as well as the
requirement that the jury apply the law and render its verdict.” See id. at 1275. Moreover,
“[b]oth the court’s instructions and the verdict form required the jury to perform the most
essential function that marks a general verdict: to decide which party prevails.” See id. The
verdict sheet in this case contained a general verdict with written answers to special
interrogatories.
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793 F.3d 1254 (11th Cir. 2015). There, it explained that “[a] verdict is inconsistent

when there is ‘no rational, non-speculative way to reconcile . . . two essential jury

findings.’” See id. at 1259 (quoting Witt v. Norfe, Inc., 725 F.2d 1277, 1278

(11th Cir. 1984)). “To determine whether a conflict in the verdict can be

reconciled, a district court must ask whether the jury’s answers could reflect ‘a

logical and probable decision on the relevant issues . . . submitted.’” Id. (quoting

Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983)).

      The jury’s findings on the original verdict sheet were inconsistent. At the

charge conference, the parties and the district court agreed that if the jury were to

find that the hip replacement device was not defectively designed, this finding

would preclude further findings and require a verdict in favor of Wright Medical.

In other words, Christiansen could prevail on her negligent misrepresentation claim

only if the jury first found that there was a design defect. Thus, the original verdict

sheet instructed the jurors that if they found that there was no design defect, they

were to “stop, and sign and date this form.” Nevertheless, the jury recorded on the

original verdict sheet both that there was no design defect and that Wright Medical

had made a negligent misrepresentation. These findings are inherently inconsistent

as there is “no rational, non-speculative way to reconcile” these findings. See id.

(quoting Witt, 725 F.2d at 1278).




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       We reject Wright Medical’s invitation to ignore this inconsistency on the

theory that the jury’s response to Question 1A is controlling and any additional

responses have no legal effect.9 It is apparent from these contradictory and

irreconcilable responses that the jury did not understand the instructions on the

original verdict sheet. If the jury had understood these instructions, it would not

have continued to answer additional questions before it. Yet, the jury continued to

respond to additional questions thereby rendering its finding in Question 1A

irreconcilably inconsistent with its additional answers.

       Wright Medical further argues that even if the district court was correct in

not entering judgment in its favor, it erred in ordering further deliberations rather

than a new trial. In this regard, Wright Medical contends that because the district

court stopped publication of the jury verdict immediately after the jury had

announced that there was no design defect, the jurors were left with the impression

that the district court disapproved of its finding as to no design defect.

       Where the jury’s responses cannot be reconciled, “the district court has the

discretion to direct the jury to further consider its answers and the verdict, or order

a new trial.” See Reider, 793 F.3d at 1259; Wilbur v. Correctional Servs. Corp.,

393 F.3d 1192, 1199 (11th Cir. 2004). “[I]f the jury returns two inconsistent

9. Wright Medical relies on a number of cases concerning inconsistent jury verdicts. See, e.g.,
Nimnicht v. Dick Evans, Inc., 477 F.2d 133, 135 (5th Cir. 1973); McVey v. Phillips Petroleum
Co., 288 F.2d 53, 59 (5th Cir. 1961). To the extent that those cases are not distinguishable from
this case, they are inconsistent with the Supreme Court’s recent decision in Dietz v. Bouldin,
579 U.S. ___, 136 S. Ct. 1885 (2016).
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verdicts, the trial court may resubmit the issue to them for clarification.” Univ.

Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 547 (5th Cir. 1974). 10

“It is often preferable for a district court to direct the jury to reconsider its verdict

in an attempt to eliminate the inconsistency in order to avoid a new trial.” Reider,

793 F.3d at 1259.

       In Dietz v. Bouldin, 579 U.S. ___, 136 S. Ct. 1885 (2016), the United States

Supreme Court “h[eld] that a federal district court has the inherent power to

rescind a jury discharge order and recall a jury for further deliberations after

identifying an error in the jury’s verdict.” Id. at 1890. There, the jury had

“returned a legally impermissible verdict” but “[t]he trial judge did not realize the

error until shortly after he excused the jury.” Id. By the time that the district court

recognized the error in the verdict, it had already informed the jury that it was

“discharged,” the jury had already left the courtroom, and one of the jurors had left

the building to collect a hotel receipt. Id. at 1890–91. None of the jurors had

spoken to anyone about the case. In addition to holding that reassembling the jury

and ordering it to resume deliberations was permissible, the Supreme Court

declared that “[i]n the normal course, when a court recognizes an error in a verdict




10. The decisions of the Court of Appeals for the Fifth Circuit as that court existed on
September 30, 1981 are binding precedent in the Court of Appeals for the Eleventh Circuit. See
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
                                              25
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before it discharges the jury, it has the express power to give the jury a curative

instruction and order them to continue deliberating.” Id. at 1892.

       Here, upon recognizing the inconsistency in the jury verdict, the district

court, consistent with Dietz and Reider, immediately halted publication of the

verdict and instructed the jury that an error had been made. At that point, only the

finding as to the design defect claim had been announced. Wright Medical argues

that this stopping point in the publication of the jury’s findings biased further jury

deliberations. This contention lacks merit. From a review of the record, the

district court acted in a neutral and non-biased manner in acknowledging and

addressing the inconsistent verdict. Rather than bias the jury against finding that

there had been no design defect, the district court’s clarifying instruction

emphasized that such a finding was legally permissible. The district court also

recharged the jury. Any inconsistencies between the jury’s findings on the original

verdict sheet and the supplemental verdict sheet can be explained by the jury’s

failure to understand the verdict sheet instructions. Under these circumstances, it

was not an abuse of discretion for the district court to order the jury to continue

deliberating.11




11. Wright Medical also contends that the dismissal of a juror who refused to follow the
instructions of the court, taken alongside the resubmission of the case to the jury, biased
deliberations. We are not persuaded. Not only did Wright Medical fail to object to the dismissal
of this juror, but it has offered no persuasive reason why this dismissal tainted jury deliberations.
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                                         III.

      We next turn to the challenge of Wright Medical to the charge of the district

court concerning the defense against strict liability under Utah law for unavoidably

unsafe products set forth in Comment k to Section 402A of the Restatement

(Second) of Torts. Comment k states:

      Unavoidably unsafe products. There are some products which, in the
      present state of human knowledge, are quite incapable of being made
      safe for their intended and ordinary use. These are especially
      common in the field of drugs. An outstanding example is the vaccine
      for the Pasteur treatment of rabies, which not uncommonly leads to
      very serious and damaging consequences when it is injected. Since
      the disease itself invariably leads to a dreadful death, both the
      marketing and use of the vaccine are fully justified, notwithstanding
      the unavoidable high degree of risk which they involve. Such a
      product, properly prepared, and accompanied by proper directions and
      warning, is not defective, nor is it unreasonably dangerous. The same
      is true of many other drugs, vaccines, and the like, many of which for
      this very reason cannot legally be sold except to physicians, or under
      the prescription of a physician. It is also true in particular of many
      new or experimental drugs as to which, because of lack of time and
      opportunity for sufficient medical experience, there can be no
      assurance of safety, or perhaps even of purity of ingredients, but such
      experience as there is justifies the marketing and use of the drug
      notwithstanding a medically recognizable risk. The seller of such
      products, again with the qualification that they are properly prepared
      and marketed, and proper warning is given, where the situation calls
      for it, is not to be held to strict liability for unfortunate consequences
      attending their use, merely because he has undertaken to supply the
      public with an apparently useful and desirable product, attended with
      a known but apparently reasonable risk.

Restatement (Second) of Torts § 402A cmt. k (Am. Law Inst. 1965).




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      The district court delivered the following instruction to the jury concerning

the unavoidably unsafe product defense:

      Wright Medical has asserted in this case a defense that the hip
      replacement device was unavoidably safe and thus was not defective.
      To prove this defense, Wright Medical must prove by preponderance
      of the evidence the following elements. First, that when the hip
      replacement device was made, it could not be made safe for its
      intended use even applying the best available testing and research.
      Second, the benefit of the hip replacement device justified its risk.
      And, third, the product, properly manufactured, was accompanied by
      proper directions and warnings. If Wright Medical proves these
      elements by a preponderance of the evidence, the hip replacement
      device is not defective.

      Wright Medical contends that the district court erred in instructing the jury

to apply a case-by-case analysis that takes into account whether the specific

product at issue was properly manufactured and accompanied by proper directions

and warnings. Instead, Wright Medical asserts that the district court should have

instructed the jury that the defense is a categorical bar to liability if the jury finds

that the device could not be made safe for its intended use and that the benefit

justified the risk. The availability of an affirmative defense is a question of law

reviewed de novo. See Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., Int’l, 533 F.3d 1287, 1319–20 n.38 (11th Cir. 2008).

      In Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991), the Utah Supreme

Court rejected the case-by-case approach and adopted Comment k as a categorical

bar against strict liability with regard to a particular class of products, namely,


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pharmaceutical drugs that have been approved by the United States Food and Drug

Administration. It “h[eld] that a drug approved by the United States Food and

Drug Administration (“FDA”), properly prepared, compounded, packaged, and

distributed, cannot as a matter of law be ‘defective’ in the absence of proof of

inaccurate, incomplete, misleading, or fraudulent information furnished by the

manufacturer in connection with FDA approval.” Id. at 90. In announcing this

rule, the Utah Supreme Court “acknowledge[d] that by characterizing all

FDA-approved prescription medications as ‘unavoidably unsafe,’ we are

expanding the literal interpretation of comment k.” Id. Nonetheless, it extended

this defense applicable to FDA-approved prescription drugs because “[i]n its role

as ‘both a health promoter . . . and . . . a public protector,’ the FDA employs a

comprehensive scheme of premarket screening and post-market surveillance to

ensure the safety and efficacy of all licensed medications.” See id. at 96 (quoting

New Drug and Antibiotic Regulations, 50 Fed. Reg. 7452 (Feb. 22, 1985)).

      Wright Medical asserts that the Utah Supreme Court would extend the

categorical bar against strict liability to medical devices, such as its hip

replacement device. Because the Utah Supreme Court has not spoken on the issue,

we must predict how it would decide this case. See Molinos Valle Del Cibao,

C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011); Guideone Elite Ins. Co.

v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1326 (11th Cir. 2005). In


                                           29
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Grundberg, the Court adopted the categorical bar against strict liability for

pharmaceutical drugs on the premise that those products have satisfied the

requirements of a comprehensive FDA approval process:

      A drug is designed to be effectively administered to specific
      individuals for one or a number of indications. To determine whether
      a drug’s benefit outweighs its risk is inherently complex because of
      the manufacturer’s conscious design choices regarding the numerous
      chemical properties of the product and their relationship to the vast
      physiologic idiosyncracies of each consumer for whom the drug is
      designed. Society has recognized this complexity and in response has
      reposed regulatory authority in the FDA. Relying on the FDA’s
      screening and surveillance standards enables courts to find liability
      under circumstances of inadequate warning, mismanufacture,
      improper marketing, or misinforming the FDA-avenues for which
      courts are better suited. Although this approach denies plaintiffs one
      potential theory on which to rely in a drug products liability action,
      the benefits to society in promoting the development, availability, and
      reasonable price of drugs justifies this conclusion.

      In light of the strong public interest in the availability and
      affordability of prescription medications, the extensive regulatory
      system of the FDA, and the avenues of recovery still available to
      plaintiffs by claiming inadequate warning, mismanufacture, improper
      marketing, or misrepresenting information to the FDA, we conclude
      that a broad grant of immunity from strict liability claims based on
      design defects should be extended to FDA-approved prescription
      drugs in Utah.

Grundberg, 813 P.2d at 98–99. The Court emphasized that “[n]o other class of

products is subject to such special restrictions or protections in our society.” Id. at

96.

      Even if the Utah Supreme Court were to extend the bar against strict liability

to FDA-approved medical devices, we predict that it would not extend it to the hip
                                          30
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replacement device at issue here because the record is silent as to whether that

device had obtained FDA approval. At oral argument, Wright Medical conceded

that it did not present any evidence at trial as to whether its hip replacement device

was approved by the FDA. Thus, even if Utah law would extend the categorical

bar to FDA-approved medical devices, Wright Medical has not met its burden to

prove that this affirmative defense applies to its hip replacement device.

       On this record, any categorical bar to liability for an unavoidably unsafe

product was not available to Wright Medical under Utah law. Accordingly, the

district court did not err in failing to give such an instruction to the jury. Any error

by the district court in instructing the jury on the unavoidably unsafe defense did

not affect the result in this case because the jury found that Wright Medical had not

proven the defense. Thus, the district court’s error was harmless. 12

                                               IV.

       We affirm the order of the district court denying the motion of Wright

Medical for judgment as a matter of law or for a new trial. The judgment in favor

of plaintiff Robyn Christiansen and against defendant Wright Medical for

$2,100,000 stands.

       AFFIRMED.



12. Because we conclude that the jury’s verdict for Christiansen on her strict liability design
defect claim suffices to support the verdict, we need not and do not decide whether the jury
found that Christiansen proved all the elements of her negligent design defect claim.
                                                31
