IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PAULA HARRIS

Plaintiff,
C.A. No. NlSC-06-216 PEL

V.

BosToN sciENTlFIc
coRPoRArloN (d/b/a
MANSFIELD scIENTIFIC, INC. &
MICRovAsI\/E INC.),

Defendant.

Subrnitted: October l6, 2017
Decided: January 2, 2018

CORRECTED OPINION

Robert J. Leoni, Esq., Shelsby & Leoni PA, Christine V. Clarke, Esq., Chris A.
Gomez, Esq., Kline & Specter, PC Attorneys for Plaintiff Paula Harris

Colleen D. Shields, Esq., Eckert Seamans Cherin & Mellott, LLC Attorneys for
Defendant Boston Scientiflc Corporation

JOHNSTON, J.
PROCEDURAL CONTEXT

Before the Court are post-trial motions in a products liability case. Plaintiff
Paula Harris alleged that Defendant Boston Scientific Corporation (“Boston
Scientific”) designed, manufactured, distributed, and sold a pelvic mesh device, the
“LynX,” that injured Harris. After a nine-day trial, the jury returned a verdict in

favor of Boston Scientiflc.

Harris now brings Motions for a NeW Trial and to Set Aside Verdict. She

argues that the verdict went against the great weight of the evidence and that various
Court rulings prejudiced the jury against Harris.
MOTION FOR NEW TRIAL STANDARD

To warrant granting a motion for a new trial, “the verdict must be manifestly
and palpably against the weight of the evidence or for some reason, or combination
of reasons, justice would miscarry if it were allowed to stand.”l Delaware law gives
great deference to jury verdicts.2 “In the face of any reasonable difference of
opinion, courts will yield to the jury’S decision.”3 When the court considers a motion
for a new trial, “there is a presumption that the jury verdict is correct.”4

ANALYSIS

T he Jury ’s Verdict Was Not Against
the Great Weight of the E vidence

Harris argues that the jury’s verdict was contrary to the great weight of
evidence in two respects. First, she claims the great weight of the evidence Showed
the Lynx was unreasonably dangerous, based primarily on testimony that the Lynx’s
complication rate was 4.2%. Second, Harris claims the great weight of the evidence
showed that Boston Scientific acted unreasonably in the design, distribution, and

Sale of the Lynx device, because of evidence regarding the marketing and testing of

 

1 Broderick v. Wal-Mart Stores, lnc., 2002 WL 388117, at *1 (Del. Super.).
2 Brittl'ngham v. Layfield, 2008 WL 4946217, at *3 (Del.).

3 Ia’.
4 Daub v. Dam`els, 2013 WL 5467497, * 1 (Del. Super.).

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the Lynx.

Evidence that the Lynx’s complication rate was 4.2% did not require the jury
to find that the device was unreasonably dangerous. The jury heard evidence that
the 4.2% figure only represented the occurrence of vaginal erosion generally, while
other experts opined that the risk the device posed for the injury Harris actually
suffered_urethral erosion_was less than 1%.

Evidence that Boston Scientiflc did not perform clinical trials prior to placing
the LynX on the market is also not dispositive of whether the LynX was unreasonably
dangerous; or of whether Boston Scientiflc was negligent in the design, distribution,
and sale of the Lynx. The jury heard extensive testimony as to whether it was
reasonable for Boston Scientific to rely on the results of other similar products’
clinical testing before selling the Lynx. The jury considered the weight to be given
to the evidence, and made credibility determinations Resolving these issues was
well within the jury’s discretion.

Harris also argues that Boston Scientiflc’s comments in opening statement
and closing argument regarding Harris’s doctor’s conduct confused the jury. Harris
asserts that because the doctor’s conduct was irrelevant as to whether the Lynx itself
was unreasonably dangerous. However, Harris made no objection to these
comments at trial, thereby waiving this issue. In any event, both parties informed

the jury that the doctor bore no fault deciding to use the LynX. The jury was

instructed that the doctor’s conduct was not relevant to the ultimate issue of

dangerousness

T he Court’s Decisions Did Not
Prejudice Harris

Harris also argues that two rulings caused her prejudice, warranting a new
trial. Speciflcally, Harris points to the Court’s refusal to publish an image from a
patent application and the Court’s inclusion of a jury instruction on the learned
intermediary doctrine.

Harris argues that the Court’s decision not to allow her to publish an image of
a patent application prevented her from performing an effective cross-examination
of a Boston Scientific expert witness. However, the Court allowed Harris to attempt
to form a foundation to publish the image. Harris asked the witness questions
regarding the image it wished to publish and the witness responded. That exchange
effectively described the image. The witness did not agree that the image was similar
to the Lynx. Harris suffered no prejudice when she was not permitted to publish an
image a witness described to the jury as being dissimilar to the Lynx.

Although Harris does not specify which instruction she objects to, the
instruction titled “Warning to Dr. Burton” most closely fits her argument. lt stated:
The adequacy of Boston Scientific Corporation’s warnings about the
risks of the Lynx mid-urethral sling to Ms. Harris’ surgeon, Dr. Burton,

are not at issue in this case.

Harris argues that this instruction was irrelevant because there was no failure

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to warn claim and unnecessary because Harris only briefly testified as to what she
would have wanted to know from Dr. Burton. Harris claims this lack of relevance
was confusing to the jury.

The Court is not persuaded by Harris’s position. This instruction served only
to clarify to the jury the proper scope of its deliberations The instruction was not
irrelevant_Harris did describe what she would have done if Boston Scientific had
shared certain facts with Dr. Burton.5 As the Court ruled at trial, “this one-sentence
instruction is necessary in order to prevent the jury frorn considering whether or not
warnings were given as part of the evidence.”6 Harris does not argue that the
instruction was an improper statement of the law. She does not argue that the jury
should have considered the warnings to Dr. Burton. Harris only conclusorin argues
that an instruction to the jury not to consider a non-issue in the case was confusing.
Such a bare “speculative conclusion that the jury was confused” cannot be the basis
for a new trial.7

CONCLUSION
Harris’s Motions for a New Trial Pursuant to Delaware Superior Court Civil

Rule 59 and to Set Aside Verdict are hereby DENIED. The Court finds that the

 

5 Sept. 25, 2017 Trial Tr., 28:15_20 (“Q. If Boston Scientific told Dr. Burton those facts and he
shared that with you, what would you have done? A. 1 probably would have asked for a safer
option or different second opinion or not have the surgery.”).

6 Sept. 27, 2017 Trial Tr. Transcript 39:4-7.

7 Reinco, Inc. v. Thompson, 906 A.2d 103, 110 n.15 (Del. 2006).

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jury’s verdict was not contrary to the great weight of the evidence and that the

Court’s rulings did not prejudice Harris

IT IS SO ORDERED.

q

 

The¢l:ionorable Mary M. Johnston

