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Berg v. Johnson & Johnson Consumer Companies, Inc.

United States District Court, D. South Dakota, Southern Division

April 30, 2014

DEANE BERG, Plaintiff,
v.
JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL AND DENYING DEFENDANTS' RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

KAREN E. SCHREIER, District Judge.

Plaintiff, Deane Berg, brought suit against defendants, Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and others, alleging claims for strict products liability, negligent products liability, breach of warranties, civil conspiracy, and acting in concert. After the court entered various orders following motions by defendants, the claims that remained for trial were Berg's claims for strict products liability, negligent products liability, breach of warranties, and civil conspiracy against defendants Johnson & Johnson and J&J Consumer Companies.

A jury trial commenced on Berg's remaining claims on September 24, 2013. At the conclusion of Berg's case-in-chief, defendants moved for judgment as a matter of law on all claims. The court entered judgment in favor of Johnson & Johnson with respect to all claims against it as well as in favor of J&J Consumer Companies with respect to Berg's claims for civil conspiracy and breach of warranties. The court reserved ruling on J&J Consumer Companies' motion regarding Berg's strict products liability and negligent products liability claims. J&J Consumer Companies renewed its motion at the conclusion of the evidence, and the court again reserved ruling. The jury returned a verdict in favor of J&J Consumer Companies on Berg's strict products liability claim, returned a verdict in favor of Berg on her negligent products liability claim, and awarded no damages. The court then took up J&J Consumer Companies' motion for judgment as a matter of law on Berg's claim for negligent products liability and denied the motion.

Berg now moves the court for a new trial on the issue of damages only, arguing that the verdict form incorrectly instructed the jury on the law. J&J Consumer Companies resists the motion. Separately, J&J Consumer Companies[1] filed a renewed motion for judgment as a matter of law "solely to preserve their arguments... in the event Plaintiff appeals." Docket 333 at 1. Berg resists the motion. For the following reasons, the motions are denied.

BACKGROUND

The facts of this case are well known to the parties and the court and have been set out in previous orders filed by this court. Nonetheless, the court offers a brief summary for purposes of this order.

Berg used J&J Consumer Companies' products-Johnson's Baby Powder and Shower to Shower-on a daily basis in her perineum area to relieve chafing and for feminine hygiene purposes from 1975 until 2007. Some time in late 2006, Berg underwent a pelvic exam that revealed blood clotting in her ovaries. On December 26, 2006, Berg was diagnosed with ovarian cancer.

Talc is one of the main ingredients in Johnson's Baby Powder and Shower to Shower. Berg alleges the talc found in defendants' products caused her ovarian cancer and claims J&J Consumer Companies should have included a warning on its products. J&J Consumer Companies stipulated that placement of a warning on its products is physically feasible, but it argued that no warning is necessary because talc does not cause ovarian cancer, either generally or specifically in Berg's case.

Following a jury trial spanning two weeks, the court submitted two claims to the jury: strict liability failure to warn and negligent failure to warn. After deliberating for two days, the jury returned a verdict in favor of J&J Consumer Companies on the strict liability claim and in favor of Berg on the negligence claim. In response to two questions in the verdict form asking the jury to determine the amount of damages Berg was entitled to as a result of J&J Consumer Companies' negligence, the jury responded "none." Therefore, no damages were awarded. Berg did not object to the verdict form when the instructions and verdict form were being settled, and neither party objected to the jury's verdict when it was returned.

DISCUSSION

I. Motion for New Trial on Damages

Berg moves for a new trial solely on the issue of damages under Federal Rule of Civil Procedure 59(a). Under Rule 59(a), the court may grant a new trial "on all or some of the issues... for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]" Specifically, Berg argues that the verdict form provided to the jury was inconsistent with the jury instructions and South Dakota law.

"To preserve alleged errors in the jury instructions, a party must make a specific objection that distinctly states the matter objected to and the grounds for the objection" before the jury is released. Lopez v. Tyson Foods, Inc., 690 F.3d 869, 875-76 (8th Cir. 2012). If not preserved, then the party attacking the jury instructions must establish plain error. Id. at 876. Plain error only exists if (1) the instructions, taken as a whole, deviate from a legal rule; (2) the error is clear under current law; and (3) the error affects substantial rights. Id. at 877. "Plain error will not be corrected unless... it seriously affects the integrity, fairness, or public reputation of judicial proceedings." Id. Plain error "must result in a miscarriage of justice" if left uncorrected. Id. at 876. Berg admits that she did not object to the verdict form during trial. Thus, she must establish plain error.[2]

Berg specifically takes issue with Question 4 in the verdict form. "In reviewing a substantive challenge to jury instructions, the pertinent inquiry is whether the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.'" Horstmyer v. Black & Decker, Inc., 151 F.3d 765, 771 (8th Cir. 1998) (quoting Kan. City Power & Light Co. v. Ford Motor ...


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