Legal Document: Noto, Diane vs Zimmer, Inc.

On July 13, 2017 a MOTION FOR NEW TRIAL was filed involving a dispute between Noto, Diane, Noto, Joseph, and Doe I, Precision Orthopedics, Inc., Zimmer Holdings, Inc., Zimmer, Inc., for Civil in the District Court of Hillsborough County.

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IN THE CIRCUIT COURT OF THE
13TH JUDICIAL CIRCUIT, IN AND
FOR HILLSBOROUGH COUNTY,
FLORIDA

DIANE NOTO, and
PAUL JOSEPH NOTO,
CASE NO.: 17 006630
Plaintiffs,

ZIMMER, INC.; ZIMMER
HOLDINGS, INC., n/k/a
ZIMMER BIOMET
HOLDINGS, INC; PRECISION
ORTHOPEDICS, INC.; and

Defendants.
_______________________________/

PLAINTIFFS’ MOTION FOR NEW TRIAL

Plaintiffs, DIANE NOTO and PAUL JOSEPH NOTO, pursuant to Florida

Rule of Civil Procedure 1.530, move for new trial on all issues. Before and

throughout the trial, numerous prejudicial errors deprived plaintiffs of a fair trial.

This Court should grant plaintiffs motion for a new trial on all issues for the

following reasons:

The case was tried from July 1, 2019, through July 11, 2019.

The jury rendered its verdict on July 11, 2019.

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The verdict is contrary to the evidence.

The verdict is contrary to the law.

The verdict is contrary to the law and the evidence.

The verdict is against the manifest weight of the evidence.

The verdict is the product of passion, prejudice, and sympathy by the

jury.

The Court erred in granting defendants’ partial summary judgment on

plaintiffs’ failure to warn claims. This ruling gutted plaintiffs’ case and disputed

issues of material fact exist regarding Dr. Cook’s review of the Instructions for Use

(“IFU”) and that with additional information from the manufacturer she would have

altered her use of the product in the configuration used for Mrs. Noto. Despite the

trial court’s ruling on this claim, the court permitted testimony to be elicited by

defense counsel (1) from Plaintiff on her knowledge of the risks associated with the

Device; (2) from Plaintiff’s implanting surgeon, Jennifer Cook, M.D., the learned

intermediary; and, (3) from Defendants’ expert witnesses, Jeremy Gilbert, Ph.D. and

Scott D. Nelson, Ph.D., while preventing Plaintiff from eliciting testimony to counter

Defendants’ claims of safety, adequacy of warnings and pursuing the claims for

Strict Products Liability Failure to Warn and Negligent Failure to Warn. The

adequacy of the warnings, as extensively briefed in Plaintiffs’ Response in

Opposition to Defendants’ Motion for Partial Summary Judgment, are generally a

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question of fact for the jury. Introduction of this evidence improperly interjected

issues wholly irrelevant to the remaining strict liability and negligence design defect

claims.

The Court made numerous evidentiary errors, both before and during

trial, which deprived plaintiffs of a fair trial. The Court's errors affected the

arguments and evidence heard by the jury and the instructions provided to the jury.

Those errors tainted the entire trial and improperly affected the jury's verdict on all

of Plaintiffs’ claims. Given the inconsistent of the evidentiary rulings, it is clear

that the jury considered and relied upon improper evidence and argument including

erroneously admitted evidence and improper argument concerning the adequacy of

warnings related to the Zimmer M/L Taper Hip Prosthesis with Kinectiv Technology

Dual Modular Hip System, despite the erroneous pre trial ruling by the Court that

the warnings were adequate as matter of law.

The Court erred in announcing a time restriction for voir dire once it

had commenced. If the Court intended to restrict Plaintiff’s voir dire time it should

have done so prior to commencement of voir dire. See generally Hopkins v. State

223 So. 3d 285 (Fla. 4 DCA 2017). “The purpose of voir dire is to obtain a ‘fair

and impartial jury to try the issues in the case’”. Williams v. State, 424 So. 2d 148,

149 (Fla. 5 DCA 1982).

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The Court erred in failing to give the jury plaintiffs’ requested verdict

form, denying plaintiffs’ requested instruction 6 (“Summary of Claims”) and

instruction 12 (“Legal Cause”), and overruling plaintiffs’ objections to defendants’

proposed verdict form, instruction 13 (“403.12 Legal Cause”), and special

instruction 15 (“Negligent Design Unavailable if No Defect”). Together, these

errors in the jury instructions and verdict form essentially eliminated plaintiffs’

claim for negligence against Zimmer. The instructions and verdict question lumped

the defendants together, prejudicing plaintiffs. These errors misled and confused the

jury, requiring a new trial with proper instructions and verdict questions.

These errors prejudiced plaintiffs deprived them of their right to a fair

trial. A new trial on all issues is required.

MEMORANDUM OF LAW

A new trial is required for all the reasons set forth in this motion and adverse

rulings before and during trial. Without waiving those numerous and prejudicial

errors, plaintiffs focus in this memorandum on the errors in the jury instructions and

verdict form.

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"It is a basic premise that each of the parties are [sic] entitled to a fair trial."

Policari v Cerbasi, 625 So. 2d 998, 998 (Fla. 5th DCA 1993). "It is the duty of the

trial court to grant a new trial where either the verdict is against the manifest weight

of the evidence, the jury has been deceived as to the force and credibility of the

evidence, or the jury has been influenced by considerations outside the record." Keith

v. Russell T. Bundy & Assocs., Inc., 495 So. 2d 1223 1225 (Fla. 5th DCA 1986);see

also Jordan v. Brown, 855 So. 2d 231, 233 (Fla. 1st DCA 2003). The court should

also grant a new trial where a party has been prejudiced by erroneous rulings. "The

function of a motion for new trial . . . is to furnish an opportunity for the trial court

to correct its own errors, if any." ArcherDanielsMidland Co. v. A & P Bakery

Supply & Equip. Co., 240 So. 2d 73, 75 (Fla. 3d DCA 1970) [*20] (internal citation

omitted). Applying those standards here, the Court should grant Plaintiffs a new trial

based on the errors discussed below (considered both individually and

cumulatively), and because the jury's verdict is against the manifest weight of the

evidence and contrary to law.

A new trial is required because the jury instructions and verdict form failed to

inform the jury that plaintiffs brought two separate claims against Zimmer, for strict

liability and negligence, and a single separate claim against Precision for strict

liability. The court erred in failing to give plaintiffs’ requested verdict form,

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instruction 6 (“Summary of Claims”) and instruction 12 (“Legal Cause”). The Court

also erred in overruling plaintiffs’ objections to defendants’ proposed verdict form,

instruction 13 (“403.12 Legal Cause”) and instruction 15 (“Negligent Design

Unavailable if No Defect”). The erroneous verdict form compounded this error and

lumped all three of plaintiffs’ separate claims into a single question. Together, the

jury instructions and verdict form misled and confused the jury, depriving plaintiffs

of a fair trial.

Causation instruction

This Court denied plaintiffs’ requested instruction 12 on Legal Cause, which

used standard language from Florida Standard Jury Instruction (Civil) 402.12 (a &

b) (negligence cases) and 403.12 (a & b) (products liability cases). The Court

overruled plaintiff’s objection to defense instruction 13, titled “403.12 Legal Cause,”

which used nonstandard language and was incomplete.

First, defendants’ causation instruction, given by this Court, eliminated

plaintiff’s claim for negligence (T:2177). During the charge conference, plaintiffs’

counsel explained that the defense instruction failed to inform the jury that plaintiffs

have a separate negligence claim against Zimmer. The instruction given told the

jury “a defect in a product is a legal cause of damage if it directly or in natural and

continuous sequence produces or contributes substantially to producing such

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damage so that it can reasonably said that, but for the defect, the damage would not

have occurred” (T:2177).

The instruction given failed to inform the jury that Zimmer’s negligence could

have caused the injuries. Plaintiffs’ requested instruction accurately stated the law

and would have informed the jury that “negligence or a defect in a product is a legal

cause” of plaintiff’s injuries. As plaintiff feared, this misled and confused the jury

by essentially eliminating plaintiffs’ separate negligence claim.

Second, the Court compounded this error by refusing to give the second

paragraph of plaintiffs’ requested instruction on concurring cause. This second

paragraph is the standard civil instruction on concurring cause found in 401.12(b)

and 403.12(b).

Note on use 1 to instruction 403.12 explains that the concurring cause

instruction is intended to “ne e a ed

ces her ce y rea eo ca e

e a ti e e e.” See Zigman v. Cline, 664 So. 2d 968,

969 70 (Fla. 4th DCA 1995) (explaining that the purpose of this instruction, then

numbered 5.1b, is to negate “the idea that the defendant should be excused from the

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consequences of negligence on the ground that a concurring cause contributed to the

same damages”). This instruction must be given any time the defendant’s negligence

or strict liability “operates in combination with the negligent act of another or a

natural cause such as the plaintiff's pre existing physical condition to cause an

injury.” Hart v. Stern, 824 So. 2d 927, 93032 (Fla. 5th DCA 2002).

This Court made no finding that the standard instruction on concurring cause

was incorrect or inapplicable. Aubin v. Union Carbide Corp., 177 So. 3d 489, 516

(Fla. 2015) (explaining standard jury instructions “are presumed correct and should

be given unless such instructions are erroneous or inadequate”); Fla. R. Civ. P.

1.470(b) (stating standard instructions “shall be used by the trial judges of this state

in instructing the jury in civil actions to the extent that the Standard Jury Instructions

are applicable, unless the trial judge determines that an applicable Standard Jury

Instruction is erroneous or inadequate”). Without the standard concurring cause

instruction, the jury did not understand that defendants’ liability could have

combined with another cause.

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Reversal for a new trial is required so that the jury will understand that

plaintiffs had a separate negligence claim against Zimmer. A new trial is also

required so that the jury will understand that defendants’ liability could have

combined with another cause and still be considered the legal cause of plaintiffs’

injury.

Defense Special Instruction 15 Negligent Design Unavailable If
No Defect

The Court erred in overruling plaintiffs’ objections to this special instruction,

which told the jury if they found the product “is not defective in design, you should

find against Plaintiffs on their claim for negligent design.” As plaintiffs’ counsel

explained at the charge conference, plaintiffs have separate claims for strict liability

and negligent design (T:2097 99). The two different claims have different legal

standards, burdens of proof, and evidence (T:2097 99). The strict liability claim

turns on whether the product was unreasonably dangerous to an ordinary consumer

while the negligence claim focuses on whether the defendants exercised reasonable

care (T:2100, 2176). Defendants’ proposed special instruction is non standard and

incorrectly eliminates plaintiffs’ claim for negligence. Plaintiffs’ claims for Strict

Liability Defective Design and Negligent Defective Design, each requires proof of

different elements.

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The elements of a cause of action for negligence are:

A duty of care owed by the defendant to the user of a product or a
foreseeable bystander.

Breach of that duty, meaning that the defendant’s conduct falls
below the applicable standard of care for the activity in which he is
engaged.

Injury to the plaintiff that was caused by the breach.

Damages.
The doctrine of strict liability is most succinctly stated in the

RESTATEMENT (SECOND) OF TORTS §402A (American Law Institute 1965):

One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consume, or to his property, if

a. the seller is engaged in the business of selling such a product, and

it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
The rule stated in Subsection (1) applies although

a. the seller has used all possible care in the preparation and sale of the
product, and
the user or consumer has not bought the product from or entered into
any contractual relation with the seller.

Subsections (2)(a) and (b) obviously distinguish strict liability as a cause of

action completely separate from negligence and breach of warranty actions which

had, prior to the creation of strict liability, been the only means of recourse for

injuries caused by dangerous products.

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Florida joined the many other states that recognized the doctrine of strict

liability in 1976 with the issuance of the Florida Supreme Court’s decision in West

v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976). As the Second

RESTATEMENT states, the seller of a defective product can be liable regardless of

whether it exercised all possible care.

In Model Instruction 7, the Florida Standard Jury Instructions demonstrate

hat jurors should be given instructions and verdict questions on both strict liability

and negligence. The inconsistent verdict cases defendants cite are inapposite. Terex

Corp. v. Bell, 689 So. 2d 1122 (Fla. 5th DCA 1997); Ashby Div. of Consol. Alumn.

orp. v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984); Consol. Alumn. Corp. v.

Braun, 447 So. 2d 391 (Fla. 4th DCA 1984). As demonstrated in Coba v. Tricam

Indus., Inc., 164 So. 2d 637, 648 (Fla. 2015), plaintiffs are entitled to proceed to the

jury on potentially inconsistent theories. If the jury had returned a verdict in

plaintiffs’ favor, defendants could have objected if they believed the jury returned

an inconsistent verdict and asked that the jury be reinstructed. Id. at 644.

Further, this Court made no finding, as required, that the standard instructions

and Model Instruction 7 were incorrect or erroneous. Aubin, 177 So. 3d at 516

(stating the standard instructions “are presumed correct and should be given unless

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such instructions are erroneous or inadequate”); Fla. R. Civ. P. 1.470(b) (stating

standard instructions “shall be used by the trial judges of this state in instructing the

jury in civil actions to the extent that the Standard Jury Instructions are applicable,

unless the trial judge determines that an applicable Standard Jury Instruction is

erroneous or inadequate”). The ruling giving defendant’s nonstandard instruction

prejudiced plaintiffs and requires a new trial.

Summary of Claims

This Court erred in denying plaintiffs’ requested instruction 6, Summary of

Claims, which would have accurately informed the jury that plaintiffs have two

claims against Zimmerstrict liability and negligence, and one separate claim

against Precision for strict liability. The instruction given by this Court failed to

advise the jury of these separate claims (T:2175).

Verdict form eliminated plaintiffs’ separate claims

The erroneous verdict form compounded the errors in the jury instructions by

consolidating all three of plaintiffs’ separate claims into a single question:

Did Defendant, Zimmer, Inc., defectively
design, or, did Defendant, Precision Orthopedics, Inc.,
distribute a defectively designed Zimmer
KINECTIV® Dual Modular Hip System medical
device which was a legal cause of damage to Plaintiff,
Diane Noto?
___________ ___________
YES

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As discussed above, plaintiffs brought three separate and independent claims:

(1) strict liability against Zimmer; (2) negligence against Zimmer; and (3) strict

liability against Precision. In Florida, negligence and strict liability remain separate

causes of action. As explained in Aubin, the “original purpose of imposing strict

liability for defective and unreasonably dangerous products was to relieve injured

consumers from the difficulties of proving negligence on the part of the product's

manufacturer.” 177 So. 3d at 07. In recognition of the fact that strict liability

and negligence are separate bases of liability, separate standard instructions are

provided for negligence (403.9) and strict liability (403.7). The standard instruction

on Issues on Main Claim (403.15) also sets out negligence and strict liability as

separate issues for the jury to decide.

Model Instruction 7 in the Standard Civil Instructions demonstrates that

separate questions are needed on the verdict form so the jurors in a product liability

case understand the separate claims of strict liability and negligence claims against

a manufacturer and seller. Model Instruction 7 demonstrates that separate

interrogatory questions are required against each defendant and for each cause of

action:

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Was there negligence on the part of defendant
Mishap Manufacturing Co. which was a legal
cause of damage to plaintiff, John Smith?

YES NO

2b. Did defendant Mishap Manufacturing Co. place
the hay baler on the market with a defect which
was a legal cause of damage to plaintiff, John
Smith?

`YES NO

Was there negligence on the part of defendant
Sharp Sales Co. which was a legal cause of
damage to plaintiff, John Smith?

YES NO

3b. Did defendant Sharp Sales Co. place the hay
baler on the market with a defect which was a
legal cause of damage to plaintiff, John Smith?

YES

Fla. Stand. Instr. (Civ.), Model Instr. 7.

Plaintiffs requested a verdict form consistent with Model Instruction 7 that

asked separate questions on each defendant’s liability. As to Zimmer, plaintiff’s

special verdict form asked separate questions on each separate theory of liability:

strict liability and negligence. This Court made no finding that the special verdict

form used in Model Instruction 7 is incorrect. Aubin, 177 So. 3d at 516 (stating the

standard instructions “are presumed correct and should be given unless such

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instructions are erroneous or inadequate”); Fla. R. Civ. P. 1.470(b) (stating standard

instructions “shall be used by the trial judges of this state in instructing the jury in

civil actions to the extent that the Standard Jury Instructions are applicable, unless

the trial judge determines that an applicable Standard Jury Instruction is erroneous

or inadequate”). This Court should have given plaintiffs requested special verdict

form.

This Court eliminated plaintiffs’ negligence claim against Zimmer by failing

to include a special interrogatory question on this claim on the verdict form. The

Court also conflated the separate strict liability claims against the manufacturer,

Zimmer, and the distributor, Precision. This error misled and confused the jury.

This prejudice to plaintiff is demonstrated by the jury’s finding of no liability,

despite presenting overwhelming evidence on liability.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this day of July 2019, a copy of the

foregoing was filed electronically and all parties will receive notice via the Florida

Portal’s electronic filing system.

OSBORNE FRANCIS, PLLC
433 Plaza Real, Suite
Boca Raton, FL 33432
Telephone: (561) 2932600
Facsimile: (561) 923 8100
JOsborne@realtoughlawyers.com
ANorden@realtoughlawyers.com
ARomanelli@realtoughlawyers.com
Counsel for Plaintiffs

s/ Joseph A. Osborne, Esq.
Joseph A. Osborne, Esq.
Andrew Norden, Esq.
Ami Romanelli, Esq.

7/26/2019 5:21 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16

Case Info

Judge

Thomas, K. Cheryl Track Judge’s New Case

Case No.

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Document Filed Date

July 26, 2019

Case Filing Date

July 13, 2017

County

Parties

BUTLER, ABIGAIL M Attorney for the Defendant
Doe I Defendant
FAULKNER, BRANDON PAUL Attorney for the Defendant
LADDON, TARIFA B Attorney for the Defendant
LOREN, JORI M Attorney for the Defendant
Noto, Diane Plaintiff
Noto, Joseph Plaintiff
OSBORNE , JOSEPH ANTHONY, Jr Attorney for the Plaintiff
Precision Orthopedics, Inc. Defendant
TEICHNER , LEE PHILIP Attorney for the Defendant
VARNER , JOSEPH H, III Attorney for the Defendant
Zimmer Holdings, Inc. Defendant
Zimmer, Inc. Defendant
Andrew Norden Attorney
Ami Romanelli Attorneys for Plaintiffs

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