In re Zimmer, Inc., a recent Texas appellate decision, considered a product liability lawsuit brought by a plaintiff. The plaintiff argued he was hurt because of the Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used to provide internal stabilization when a patient has serious fractures in his or her lower leg. The plaintiff argued the metal plate had design defects. The plate was first placed in the plaintiff’s leg after a motorcycle accident. It failed within about a year. A second plate was implanted and also failed within about a year. The plaintiff sued the manufacturer, claiming he was permanently disabled because the two implants had failed.
The jury was selected after jurors answered a written questionnaire that asked if jurors had ever had a serious physical injury. The defense attorney also questioned the jury about the experience their family members might have had with injuries. Neither the plaintiff nor the defendant challenged a juror for cause based on an answer related to injuries. One juror who was seated had responded “none” to the question about physical injuries.
The jury found for the defendant Zimmer. The juror who had responded “none” had voted for the defendant. The plaintiff moved for a new trial, claiming misconduct by the jury and arguing that the verdict went against the weight of the evidence. He submitted affidavits from the jurors who dissented. These detailed incidents of alleged juror misconduct. Zimmer responded but didn’t offer counter affidavits.
At the hearing, the plaintiff’s attorney argued his affidavits about juror misconduct supported a new trial. However, he didn’t offer testimony and didn’t try to introduce the affidavits as evidence. The defendant didn’t offer evidence, but it also didn’t argue that the plaintiff’s motion lacked evidence and therefore should fail.
The motion for a new trial was granted on the basis of the affidavits’ contents. The trial court also found the verdict went against the weight of the evidence. The design of the plate had failed certain criteria created by the defendant. Similarly, a test had shown the plate was inadequately stiff.
The defendant asked the appellate court to review the new trial order. The appellate court explained that in order to get a new trial based on juror misconduct, a party must show there was misconduct, the misconduct was material, and it probably caused an injury. The appellate court found that the plaintiff in this case failed to show these three things. The court explained that the affidavits were insufficient and didn’t describe misconduct. Furthermore, the juror’s erroneous answer would only warrant a new trial if he committed concealment. The record didn’t show whether the mother-in-law lost her legs because of injury, disease, or some other reason. Therefore, it didn’t support a conclusion that he had failed to honestly answer the questionnaire.
The appellate court also found that the trial court shouldn’t have concluded that the jury’s finding that the Zimmer plate wasn’t defective went against the weight of the evidence. The appellate court explained that to establish a design defect in Texas, a plaintiff has to show the product was defectively designed such that it can be concluded the product is unreasonably dangerous, balancing the utility and risk and whether there was a safer alternative design. Expert evidence and objective proof that the defect caused the injury also must be provided.
The appellate court found that the jury could have reasonably found that the plate’s failures did not cause the plaintiff’s injuries. There were multiple witnesses who offered evidence at odds with the defective design claim. His orthopedist, for example, had testified the initial injury was such a serious injury that it could have resulted in amputation, and appropriate healing would have been hard no matter the circumstances.
If you are hurt as a result of a design defect, it’s important to retain attorneys with experience in proving product liability cases. The experienced San Antonio product liability attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.
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