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The General Verdict Rule: Liability Under Any Theory

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Courts presume that a jury is competent to detect inadequacy of proof (factual insufficiency) when rendering a verdict, but that jurors are incapable of determining incorrect application or theories of law (legal error). As such, in the instance that a jury awards damages through a general verdict, the "general verdict rule" holds that the verdict will be sustained if any one of the counts presented to the jury is supported by substantial evidence and not affected by legal error. Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157. The verdict will even be upheld if there are defects in the remaining counts. (Ibid.) Recently, the Fifth Appellate District of the California Courts of Appeal applied the general verdict rule to affirm a multimillion dollar jury award in a products liability matter involving a transvaginal mesh kit. The award was upheld despite the fact that the jury did not identify which theory of negligence the defendant was liable for.

In Scott v. C.R. Bard (2014) DJDAR 15464, Christine Scott ("Scott") filed suit after undergoing several surgeries associated with her pelvic organ prolapse (POP). POP is a medical condition where weakened vaginal walls allow adjoining organs such as the uterus, bladder, and/or rectum, to drop into the vaginal canal. One option to alleviate the discomfort and potential physical disability resulting from POP is by implanting a transvaginal mesh to support the vagina. After being diagnosed with mild pelvic prolapse, Scott was implanted with two Avaulta Plus mesh kits which resulted in various complications. In total, Scott had to undergo eight surgeries which included extrusion of the mesh to relieve mesh tension and to reposition the mesh after it had eroded into Scott's rectal area.

Christine Scott and her husband filed suit against C.R. Bard, Inc. ("Bard"), the manufacturer of Avaulta Plus, as well as two of her surgeons, for negligence, strict products liability, negligent misrepresentation and fraud. At trial, the jury found Bard was negligent and awarded the Scotts $5.5 million in damages. Bard appealed the award on the basis that the trial court erroneously submitted negligence theories to the jury for negligent design, negligent training, and negligent misrepresentation. Bard argued that they could not be liable for negligent design or negligent training because as a manufacturer of a prescription medical device, and that the trial court's verdict in Bard's favor on plaintiffs' fraud claims precluded liability under negligent misrepresentation. As such, Bard argued that because all three negligence theories were erroneously submitted to the jury and the jury did not identify which of the three it relied on in reaching its negligence verdict, if any one of the negligence theories should not have been presented to the jury as a matter of law, the verdict was "tainted" and must be reversed.

Although Bard's argument was a valiant attempt to capitalize on the exception to the general verdict rule, the rule is better equipped to be a sword than a shield. As such, when addressing Bard's argument, the appellate court noted that under the general verdict rule, if the negligence theories were properly presented as a matter of law, the negligence verdict is valid no matter what theory the jury relied upon in finding Bard liable. Accordingly, after establishing that Bard could be held liable for plaintiffs' injuries under negligent design despite its status as a medical device manufacturer, the appellate court ceased to address any other negligence theories and affirmed the $5.5. million award in damages.

As exemplified in the Scott case, the general verdict rule can lead to a windfall for a plaintiff who utilizes "the kitchen sink" approach. By presenting three theories of negligence and a modicum of facts in support of each, the plaintiffs essentially guaranteed that their award would not be reversed on appeal. However, the real issue with the Scottdecision is that Bard has no way of knowing how, or in what manner, it was negligent to the Scotts. This is the true danger presented in the case and with the general verdict rule; a defendant who has no way of knowing why it is liable has no way to alter his/her actions to avoid future liability.

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