New Jersey ain’t Florida and vice versa. Obviously, it’s warmer in Florida for more of the year and it never gets cold enough to snow. That could be a pro or a con. Florida has the second longest coastline among U.S. States which gives it a greater opportunity to have more highly rated beaches. But a true New Jerseyan will put Cape May and Long Beach Island toe-to-toe with Miami and Destin. If you’re a football fan, Florida boasts three pro teams (and Tom Brady) while New Jersey technically has none. That is unless you count the two teams who play their home games in East Rutherford. But given their recent records (both went 4-13 last year), New York can keep them. Pro-Florida: Disney World, oranges, taxes. Pro-New Jersey: boardwalks, tomatoes, and not having to pump your own gas. New Jersey has to live down “The Jersey Shore;” Florida has to live down “Florida Man …”
In both New Jersey and Florida, there is a strong presumption against punitive damages in drug and device cases where there’s been regulatory compliance. See Fla Stat. §768.1256; N.J. Stat. §2A:58C-4. But Florida goes a step further with a “one-award” punitive damages statute. So, while Springsteen will always give New Jersey the overall advantage in a head-to-head comparison, on punitive damages Florida has the edge.
In Benestad v. Johnson & Johnson, 2022 U.S. Dist. LEXIS 55502 (S.D. Fla. Mar. 28, 2022), Defendants filed two motions for partial summary judgement and a motion to bar plaintiff’s punitive damages claim following remand from the MDL pending in West Virginia. Plaintiff was a resident of Florida at the time she filed her lawsuit. Her first surgery involving defendants’ pelvic mesh also took place in Florida, as well as her follow-up treatment. Plaintiff had a second pelvic surgery in New Jersey involving a different one of defendants’ products. Defendants were also located in New Jersey. Id. at *17. In all three of their motions, Defendants argued Florida law applied. Plaintiff took no position on choice of law in response to either summary judgment motion but argued for New Jersey law in response to the punitive damages motion. Id. at *15. Applying the “most significant relationship” test – utilized by both states – which places particular emphasis on the location of the injury, the court concluded that Florida’s relationship predominated. Id. at *15-17.
Before turning to the punitive damages claim, we must note the significant paring down of plaintiff’s substantive claims. Plaintiff’s MDL complaint alleged 18 causes of action. In response to the summary judgment motions, plaintiff abandoned 11 of those claims including various strict liability, fraud/misrepresentation, and warranty claims. Of the remaining claims 7 claims, one was for “discovery rule and tolling” which is not a substantive claim; one was for gross negligence which is a “standard of culpability, not an independent claim; and one was for loss of consortium which survived because it was derivative of plaintiff’s design defect claim which defendants did not move for summary judgement on. Id. at *23, 27-28. That left three claims – negligent failure to warn, strict liability failure to warn, and punitive damages.
On the failure to warn claims, Florida’s learned intermediary doctrine requires plaintiff to prove causation by showing “that her treating physician would not have used the product had adequate warnings been provided.” Id. at *21. Both of plaintiff’s implanting surgeons testified that they did not read the warnings that accompanied the devices, but both were fully aware of the risks of the surgery, including those experienced by plaintiff. Id. at *10-13. So, the evidence demonstrated that their treatment decisions would not have changed. The only evidence plaintiff offered to support her claim was a notice by the FDA that came out three years after plaintiff’s surgeries – making it immaterial. Id. at *22.
Now for the more interesting punitive damages discussion. Having essentially acquiesced to the application of Florida law to her substantive claims, plaintiff does a bit of an about-face to argue New Jersey law should apply on punitive damages. As noted above, New Jersey’s punitive damages law for prescription drugs/devices is not exactly plaintiff-friendly. In fact, New Jersey based companies (like defendants here) often argue for application of New Jersey’s punitive damages law in products cases. The statute provides:
In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction. . . If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration . . . a rebuttable presumption shall arise that the warning or instruction is adequate.
N.J. Stat. §2A:58C-4.
Florida has a similar statute:
In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm:
(a) Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury;
(b) The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and
(c) Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product.
Fla Stat. §768.1256.
So, assuming defendants’ warnings complied with the FDA, plaintiff had a difficult road to punitive damages under either state’s law. But this case is part of a mass tort, so Florida has an additional statute that gave defendants an extra layer of protection:
Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purpose of civil action, the term “the same act or single course of conduct” includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.
Fla. Stat. § 768.73(2)(a).
Defendants submitted evidence of prior punitive damages awards in cases involving the same products and allegations as in Benestad. Plaintiff did not offer any evidence in rebuttal, but rather tried to rely on a narrow exception to the rule. The basis for the statute is that under Florida law, the purpose of punitive damages is to punish the defendant and deter similar conduct, not to further compensate the plaintiff. Benestad, at *24. So, the ban on multiple awards may not apply
if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior… In addition, the court may consider whether the defendant’s act or course of conduct has ceased.
Fla. Stat. § 768.73(2)(b).
Plaintiff presented no clear and convincing evidence that the earlier awards were an insufficient deterrent. Plus, defendants voluntarily took the product off the market ten years ago. Id. at *26-27. Therefore, the court found that punitive damages could not be awarded under Florida law.
You’ll never get this Jersey girl to pick Sunshine over the Garden (except for Key West) – but we can get behind Florida products liability law when it leads to outcomes like this.