Christiansen v. Wright Medical Technology Inc. (178 F. Supp. 3d 1321, 2016)

United States District Court for the Northern District of Georgia 2016-04-05

Citations

Full opinion text

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Wright Medical Technology, Inc. ’s (“Defendant” or “Wright Medical”) Renewed Motion for Judgment as a Matter of Law, or in the Alternative, Motion for-New Trial and to Amend the Judgment [241] (“Renewed Motion”).

I. BACKGROUND

Plaintiff Robyn Christiansen (“Plaintiff’) filed this action against Defendant Wright Medical based on the failure of the Wright Conserve Hip Implant System (the “hip replacement device”) that was surgically implanted on April 24, 2006, to replace Plaintiffs right hip. On November 9, 2015, trial began on Plaintiffs claims for: (1) Strict Product Liability (Design Defect) (Count I); (2) Negligence (Design Defect) (Count III); (3) Fraudulent Misrepresentation (Count V); (4) Fraudulent Concealment (Count VI); and (5) Negligent Misrepresentation (Count VII), and her demand for compensatory and punitive damages.

On November 16, 2015, after Plaintiff concluded her case-in-chief, Defendant moved, under Rule 50 of the Federal Rules of Civil Procedure, for judgment as a matter of law on Plaintiffs claims for: (1) fraudulent misrepresentation; (2) fraudulent concealment; (3) negligent misrepresentation; and (4) punitive damages. ( [239]). The Court declined to rule on the motion at that time, and trial proceeded. (Trial Transcript [226]-[236] at 921:21-922:16).

On November 18, 2015, Defendant renewed its Rule 50 motion at the close of evidence. Defendant also argued that Comment k of Section 402A of the Restatement (Second) of Torts (“Comment k”) bars Plaintiffs strict liability claim for design defect, and that the Court should grant judgment as a matter of law on this claim. The Court submitted the case to the jury, allowing Defendant to renew its motion for judgment as a matter of law, for a new trial, or both, after the jury returned its verdict. ([212]).

On November 19, 2015, the Court held its charge conference (the “Charge Conference”). The Court discussed the proposed jury charges, including proposed charges on strict product liability (design defect), fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, negligence, comparative fault, and compensatory and punitive damages. (Tr. at 1346-1401). There was only one objection at the Charge Conference, and that was based on the Court’s charge on Defendant’s Comment k defense. (Tr. at 1414:6-18). The charge required Defendant to prove three things to prevail on its Comment k defense:

(1) When the hip replacement- device was made, it could not be made' safe for its intended use even applying the best available testing and research;'

(2) The benefit of the hip replacement device justified its risk; and

(3) The hip replacement device, properly manufactured, was accompanied by proper directions and warnings.

(Id. at 1414:11-14, 1416:5-21). Defendant objected to the third element, arguing it was not required under Utah law and was not otherwise a requirement of Comment k. (Id. at 1414:2-5, 1414:17-18, 1417:6-13).

The proposed verdict form also was discussed at the Charge Conference. (Id. at 1401-19). The Court, in consultation with the parties, made certain revisions to the verdict form. One change suggested by the Court and agreed to by the parties was to require the jury to make special factual findings on each of the three prongs the Court determined Defendant must prove for its Comment k defense. ([219.1] (the “Original Verdict Form”) at 7).

The general structure of the Original Verdict Form was that it contained questions required to be answered followed by instructions on how to proceed depending on answers to the questions. The first question on the Original Verdict Form, Question 1A, stated: “Do you find by a preponderance of the evidence that Wright Medical’s hip replacement device was defectively designed?” (Original Verdict Form at 1). The jury was required to answer “Yes” or “No.” The bolded instruction after Question 1A stated: “If you answered NO to Question 1A, stop, and sign and date this form. If you answered YES to Question 1A, proceed to Question IB,” (Id.). The purpose of this instruction was to ensure that if the jury concluded the hip replacement device was not defectively designed, it would cease its deliberations, because without a finding of defect, Plaintiff could not prevail on any of her claims. (See Tr. at 1402:7-21).

After closing arguments, the Court charged the jury. (Id. at 1423-1506), The Parties did not object to the charge as given. (Id. at 1506:9-14). The Court gave the jury the Original Verdict Form for use in its deliberations.

On November 20, 2015, the jury notified the Court that it had reached a verdict. (Id. at 1518). The jury returned to the courtroom and the completed Original Verdict Form was given to the Court for review. The Court reviewed the form and instructed the courtroom deputy to read it. (Id. at 1519:3-4).

After the courtroom deputy read the answer to Question 1A as “No,” the Court, recognizing that the Original Verdict Form had an inconsistency in it, told the courtroom deputy to stop reading the form so the Court could reexamine it further. (Id. at 1519:5-15). Upon review of the Original Verdict Form, the Court discovered that the jury had completed the form inconsistently with the instructions on the form, including the instruction telling them what to do if they answered “No” to Question 1A. The instruction provided that a “No” answer to Question 1A required the foreperson to “stop, and sign and date this form.” (Original Verdict Form at 1). Reviewing the Original Verdict Form as a whole, the Court noted the inconsistency in how it was completed. The Court noted that the answer to Question 1A was that Wright Medical’s hip replacement device was not defectively designed, meaning the jury was to date and sign the form. Instead, the jury continued answering questions on the form including by finding that Wright Medical had made negligent misrepresentations to Plaintiff as to the hip replacement device, and that Plaintiff should be awarded $662,500 in compensatory damages on the negligent misrepresentation count, and $2.5 million in punitive damages. (Id. at 4, 6). The jury also concluded that Plaintiff was partially at fault for causing her injuries, attributing 24.24% of the fault to her. (Id. at 6). These findings were not consistent with the initial finding of no defect. The Original Verdict Form, as completed, indicated to the Court that the jurors were confused either about their findings, or how the Original Verdict Form should be completed, or both.

The Court instructed the jury to take the Original Verdict Form back to the jury room and to carefully reread the form to evaluate whether they had completed it properly. (Tr. at 1519:16-20). The Court explained to the jury that the Original Verdict Form was drafted to guide them through findings they needed to make and findings they were not to make, depending on how they answered the questions on the form. (Id. at 1521:13-23). The Court provided a clean copy of the Original Verdict Form, and instructed the jury to go back to the jury room and read it out loud to ensure that they all understood the specific instructions that applied to the questions. (Id. at 1522:7-12). The Court instructed the jury that, should their understanding of the form impact their thinking about the verdict, they should discuss that with each other. (Id. at 1522:13-16, 1523:2-13).

After the jury left the courtroom, Defendant objected to the instructions the Court gave to the jury, and moved that the Court accept the jury’s answer to Question 1A of the Original Verdict Form, and mold the remainder of the Original Verdict Form “to reflect judgment for defendant and against plaintiff .... ” (Id. at 1523:19-1524:20). The Court denied Defendant’s motion, finding that the jury did not understand the instructions on the Original Verdict Form. (Id. at 1524:21-1525:7).

A few minutes later, the jury notified the Court that it did not understand the Original Verdict Form and that they wanted an additional explanation of it. (Id. at 1525:23-1526:1). Without the jury present, the Court and counsel for the parties discussed how to revise the verdict form to better instruct the jury on how they were required to proceed based on how they answered each question. (Id. at 1526:2-1529:5). The Court suggested amending the verdict form to replace “stop, and sign and date this form” to state clearly that if the jurors answered “No” to Questions 1A, IB, ID, or IE, they should stop completing the form and tell the Court they had reached a verdict. (Id. at 1526:13-21). The parties did not object to modifying the verdict form in the manner discussed although Defendant stated it was doing so subject to its earlier motion for entry of judgment in its favor. (Id. at 1527:7-10, 1527:24-1528:1,1528:23).

The Court prepared a revised verdict form with the agreed revised instructions. ([225.5] at 61-67 (the “Supplemented Verdict Form”)). The revised instructions directed what the jury should do if they answered “No” to Questions 1A, IB, ID, or IE. The instructions were in the following form:

If you answered “No” to Question 1A, stop. Do not complete the remainder of the form. The foreperson should sign and date the form and tell the Court Security Officer you have a verdict.

(Supplemented Verdict Form at 1). The Court drafted the following note to be attached to the revised form when it was delivered to the jury:

Ladies and Gentlemen:

In response to your comment that you do not understand the verdict form, I have revised the form by adding clarifying language in certain of the instructions. The instructions where clarifying language was added are identified with an asterisk.

If this language does not answer all of your questions about how to complete the form, please tell the Court Security Officer so I can respond before you continue your deliberations.

Finally, if in following the instructions you were required to answer Question 1C, please make the Special Factual Findings on page 7. If you ended up not answering Question 1C, do not make the Special Factual Findings on page 7.

([225.5] at 60) (the “Explanatory Note”)

The parties agreed to the Supplemented Verdict Form and the Explanatory Note, although Defendant did so subject to its earlier motion for entry of judgment in Defendant’s favor. (Tr. at 1530:6-7, 1534:9-12).

Plaintiff also requested that the Court reinstruct the jury. (Id. at 1531:5-12). Defendant objected to the reinstruction request. (Id. at 1532:12). The Court concluded that reinstructing the jury on the charges would assure the instructions would be fresh in their minds when they received the Supplemented Verdict Form. (Id. at 1532:12-21).

The jury was recalled to the courtroom where the Court explained that it was going to reinstruct them on the law and provide them with a revised verdict form. (Id. at 1536:3-22). The Court repeated its jury charge in its entirety. (Id. at 1537-1563). The Court then stated that the jury would receive the revised verdict form. The Court read the Explanatory Note to the jury before the Supplemented Verdict Form and the Explanatory- Note were given to them. (Id. at 1563:24-1564:21). The Court told the jury that when they returned to the jury room they should review the Supplemented Verdict Form and, if they did not understand its instructions, they should notify the Court. (Id. at 1564:22-1565:1). The jury returned to the jury room to deliberate. About half an hour later, the Court released the jury for the weekend. (Id. at 1570:11-12).

On Monday morning, the jury continued their deliberations. At about 2:00 p.m., the jury notified the Court that they were unable to reach a unanimous verdict. (Id. at 1574:8-10). The Court, with agreement of the parties, sent this written note to the jury:

I have received and carefully reviewed your note. Considering the length of time you have been deliberating, you should continue your deliberations in an effort" to reach a verdict.

(Id. at 1574:14-22). At approximately 5:00 p.m., the Court released the jury for the day. (Id. at 1575:13-15).

The- jury continued their deliberations the next day. At about 2:00 p.m., the Court received a note from one of the- jurors stating that the juror had personal and professional obligations with which the trial was interfering. (Id. at 1588:8-1584:9). The note stated that the deliberations were taking an “extensively long time as one of the jurors doesn’t look at the evidence through the perspective of the law _” (Id. at 1583:22-25). Because the jury was still deliberating, the Court decided to wait until the end of the day to consider the note. (Id. at 1584:10-12). The parties agreed with this decision. (|d. at 1585:1-4).

A couple of hours later, the Court received a note from the foreperson, which stated: “We are unable to provide a verdict and complete the verdict form. We have one juror that has decided no longer to participate in the jury and the process to reach a unanimous verdict.” (Id. at 1585:8-10,1586:3-7).

The two notes, read together, indicated to the Court that there was a juror that may be impacting the jury’s efforts to reach a verdict. (Id. at 1586:8-10). The parties agreed that the juror should be identified to the Court and that the Court should discuss the juror’s participation in deliberations. (Id. at 1586:10-17, 1588:11-16). The Court advised that a lawyer for each party would observe the Court’s meeting with the juror. (Id. at 1593:4-7).

The Court first spoke with the foreperson in chambers and asked her to identify the juror who was not participating in the deliberations. Counsel for the parties was present. The foreperson identified the juror in question (the “Juror”). (Id. at 1600:3-20).

About five minutes later, the Court, with counsel for each party present, met with the Juror in chambers. (Id. at 1601:6-8,18-24). The Court told the Juror the Court was not asking the Juror what decisions he or the other jurors had reached and it did not ask on what question or questions in the Supplemented Verdict Form the jurors had differing opinions. The Court then proceeded to ask the Juror á number of questions about whether the Juror could follow the Court’s instructions, including those on the Supplemented Verdict Form. (Id. at 1602:13-1606:25).

The Court asked if the Juror disagreed with the conclusion and verdict the other jurors wanted to reach and if that made him not want to deliberate any further. (Id. at 1602:18-24). The Juror agreed with that statement and, in response to additional questions, further explained that part of the problem was there was a principle of law with which he did not agree, and part of the issue was that there were instructions that he did not think he could follow. (Id. at 1603:8-24, 1605:6-25, 1606:6-14).

The Juror was temporarily excused while the Court discussed with counsel the Juror’s answers to the Court’s questions. Counsel for Defendant generally agreed the Juror had stated he could not follow the instructions given to him by the Court, including those in the Original Verdict Form. (Id. at 1607:3-22). Counsel for Defendant, however, asked the Court to clarify whether the Juror was saying he was unable to follow the Court’s instructions or whether it was his fellow jurors who refused to follow the instructions. (Id. at 1607:22-1608:2). The Court agreed to seek this clarification, and the Juror returned to chambers, where the following exchange occurred:

THE COURT: So I don’t want to focus on any specific question, but has there been during your deliberations a question where you have voted with the others on how to answer the question— have there been times when you agreed with the answer to the question?' Has that happened?

JUROR: Yes, it has.

THE COURT: And then when you go down and look at the instruction, is the answer to that question an instruction that you disagree with and that you haven’t been able to follow?

JUROR: Haven’t been able to follow? In some instance, yes.

THE COURT: And is that because you disagree that the instruction would lead to a result that you think should happen?

JUROR: My answer is different from what some of the others had, yes.

THE COURT: And when you say your answer — you answered differently, there are others that say here is what the instruction says, this is what we have to do, is it your position is I know that’s what the instruction says, but I can’t agree with it because I think that would lead to the wrong result?

JUROR: Yes, sir.

(Id. at 1609:11-1610:10). After these questions were answered, the Court again excused the Juror and consulted with counsel about whether his statements showed he was unwilling to follow the Court’s instructions. The Court summarized the Juror’s response to the Court’s further questions:

THE COURT: I think that clarifies that he is unable to follow the instructions on the verdict form. Do you agree?

MR. ASH: Yes, sir.

THE COURT: Do you agree, Mr. Boucher?

MR. BOUCHER: I don’t know. I think that the answer is yes. I think he’s having a difficult time following the verdict form and agreeing to what the verdict form directs him to do.

THE COURT: .Well, I think from what he said it goes further than that. He understands the instruction and , that there has been one and maybe more than one instance where he has read the instruction and has not agreed to follow it because he disagrees with the result that it leads to. Isn’t that what he said, that that’s actually happened?

MR. BOUCHER: I think that’s what he said.

THE COURT: And I think having had this discussion, we all agree that the instructions are integral to — the instructions on the verdict form are integral to the overall instruction on the law that I give and they must follow it to get a correct legal result.

MR. BOUCHER: Yes.

THE COURT: Mr. Ash?

MR. ASH: I agree.

(Id. at 1610:16-1611:14). The Court concluded that the Juror had refused to follow the instructions-on the verdict form, thus was not participating in deliberations, and that he was engaged in juror misconduct requiring him to be excused from service. (Id. at 1611:15-24). The parties agreed. (Id. at 1607:3-1608:2, 1610:19, 1611:7-14). Counsel agreed to the Court giving a note to the remaining jurors stating the Juror had been excused.

At about 5:30 p.m., the Court excused the Juror from service, the note was given to the remaining jurors, and they continued their deliberations. About a half an hour later, the jury notified the Court that it had reached a verdict. (Id. at 1619:3-8).

The jury returned to the courtroom, announced they had reached a verdict, and gave their completed Supplemented Verdict Form ([223]) to the Court. The Court reviewed the completed form, confirmed that it was in the proper form, and instructed the courtroom deputy to publish the verdict. (Tr. at 1620:20-1621:5).

In its verdict, the jury found by a preponderance of the evidence that Wright Medical’s hip replacement device was defectively designed, was unreasonably dangerous, was defective when it was sold to Plaintiff, caused Plaintiffs injuries, and that Plaintiff was entitled to recover compensatory damages on account of the defective device in the amount of $550,000. ( [223] at 1-2). The jury found that Defendant did not make fraudulent misrepresentations regarding the device, and did not fraudulently conceal important facts regarding the device. (Id. at 3, 5). The jury found that Defendant made negligent misrepresentations regarding the device, and awarded Plaintiff an additional $450,000 in compensatory damages for the negligent misrepresentations. (Id. at 4).

The jury also awarded $10 million in punitive damages, and concluded that Plaintiff was not at fault in causing her harm. (Id. at 6). The jury, in the Special Factual Findings section, found that Defendant had failed to prove by a preponderance of the evidence that the hip replacement device, properly manufactured, was accompanied by proper directions and warnings. (Id. at 7). The poll of the jurors confirmed that the verdict was the verdict each of them reached in the jury room. (Tr. at 1625:9-1627:22).

On December 2, 2015, judgment was entered in favor of Plaintiff and against Defendant for compensatory damages in the amount of $1,000,000 and punitive damages in the amount of $10,000,000, for a total judgment of $11,000,000. ([224]). The Court ordered that post-trial motions be filed on or before December 28, 2015. On December 28, 2015, Defendant filed its Renewed Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial and to Amend the Judgment.

II. LEGAL STANDARDS

A. Motion for Judgment as a Matter of Law

Rule 50(a) of the Federal Rules of Civil Procedure provides:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1).

To grant a motion under Rule 50, the Court must find “’there is no legally sufficient evidentiary basis for a reasonable jury to find’ for the non-moving party.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir.2007) (quoting Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.2001)); see also Burrell v. Okla. Dep’t of Transp., 28 F.3d 112 (10th Cir.1994).

In considering a Rule 50 motion, the Court focuses on the sufficiency of the evidence. Chaney, 483 F.3d at 1227. The Court must “review all of the evidence in the record and must draw all reasonable inferences in favor of the nonmoving party.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir.2004). Credibility determinations, the drawing of inferences, and the weighing of competing evidence are functions for the jury, not the Court. Id. at 1193.

Where the case has been submitted to the jury, the Court must deny the motion and affirm the jury verdict “unless there is no legal basis upon which the jury could have found for [the prevailing party].” See Nebula Glass Int’l, Inc. v. Reichhold, Inc., 454 F.3d 1203, 1210 (11th Cir.2006).

B. Motion for New Trial or to Amend a Judgment

A motion under Rule 59(e) may be granted only under certain limited circumstances. “[T]here are three primary grounds for reconsideration of a judgment: an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice.” United States v. Battle, 272 F.Supp.2d 1354, 1357 (N.D.Ga.2003). Whether to grant a Rule 59(e) motion is “committed to the sound discretion of the district judge.” Am. Home Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir.1985).

Rule 59(a)(1) of the Federal Rules of Civil Procedure provides:

The Court may, on motion, grant a new trial on all or some of the issues — and to any party — as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

Fed. R. Civ. P. 59(a)(1). A motion for a new trial generally may be granted where “the verdict is against the weight of the evidence, ... the damages are excessive, or ... for other reasons, the trial was not fair to the moving party; [or where there are] questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions, to the jury.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940).

“In general, a remittitur order reducing a jury’s award to the outer limit of the proof is the appropriate remedy where the jury’s damage award exceeds the amount established by the evidence.” Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir.1985); see also First Sec. Bank of Utah, N.A. v. J.B.J. Feedyards, Inc., 658 P.2d 591, 598 (Utah 1982) (“While the finder of fact has wide latitude in determining damages, th[e] Court has authority to reduce the amount of the trial court’s award where all reasonable minds would conclude [that] the limits have been exceeded.”) (internal quotations omitted).

III. ANALYSIS

Defendant argues it is entitled to judgment as a matter of law because, on the Original Verdict Form, the jury answered “No” to Question 1A, which Defendant claims is a dispositive finding that the hip replacement device was not defectively designed. (Defs Br. in Supp. of Renewed Mot. [246] at 1-7). Defendant alternatively argues that it is entitled to a new trial because of (1) juror confusion or bias, and (2) the excusal of the Juror without good eause. (Id. at 8-16). If the Court does not grant Defendant judgment as a matter of law based on the verdict reflected on the Original Verdict Form, or order a new trial, Defendant argues it is entitled to judgment as -a matter of law or a new trial on Plaintiffs strict liability design defect claim, negligence claim, and negligent misrepresentation claim. (Id. at 16-24). Finally, Defendant argues the Court should strike or reduce the punitive damages award or order a new trial on punitive damages, and should order a new trial on compensatory damages unless Plaintiff accepts a remitter. (Id. at 24-35).

A. Judgment as a Matter of Law Based on Original Verdict Form

Defendant argues that when the jury indicated on the Original Verdict Form that the hip replacement device was not defectively designed, the case was decided and it was error for the Court to resubmit the matter to the jury based on jury confusion. (Br. at 4), According to Defendant, the “Court should have accepted the special verdict form and molded the verdict to the dispositive initial determination. All subsequent answers in the Original Verdict Form should have been disregarded as surplusage.” (Id.) (citing Fed. R. Civ. P. 49(a)).

Rule 49 of the Federal Rules of Civil Procedure addresses “general verdicts with answers to written questions.” Fed. R. Civ. P. 49(b). Rule 49(b) provides:

[a district court] may submit to the'jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both.

Fed. R. Civ. P. 49(b)(1): Rule 49(b) also discusses the options available to a court when the answers required in response to written questions are inconsistent with the verdict or with each other. Rule 49(b)(4) specifically provides: “[wjhen the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial.” Fed. R. Civ. P. 49(b)(4).

Because the verdict form in this case was a Rule 49(b) general verdict with answers to written questions submitted to the jury, Rule 49(b) authorizes the Court to resubmit the general verdict to the jury if the jury’s answers to the written questions were inconsistent. See Fed. R. Civ. P. 49(b)(1), (4); Mason v. Ford Motor Co., 307 F.3d 1271, 1274 (11th Cir.2002); Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1203 (11th Cir.2004) (resubmission of inconsistent Rule 49(b) verdict a better alternative). “A verdict contains an inconsistency if answers given by the jury may [not] fairly be said to represent a logical and probable decision on the relevant issues as submitted.” Wilbur, 393 F.3d at 1200.

The verdict recorded on the Original Verdict Form contained inconsistent answers when the verdict form was completed by the jury. The answers themselves were irreconcilably inconsistent, likely caused by the jury’s confusion with the instructions. The Original Verdict Form shows that the jury concluded the hip replacement device was not defective, but failed to recognize the instruction that followed Question 1A, which told them to stop any further deliberations and sign and date the form. (Original Verdict Form at 1). This instruction was intended to mean that the jury was to stop deliberating and sign and date the last page of the form. The foreperson instead signed and dated page one of the form, then proceeded to page 2 and, after answering Question ID — the second question on page 2 — the foreperson, following the instruction that followed Question ID, stopped answering the remaining questions on page 2 and signed and dated the bottom of page 2. (Id. at 1-2), The jury’s consistently incorrect application of the instructions resulted in inconsistent findings. The jury’s answers to Questions 1A and ID are facially inconsistent with its answers to Questions 3A, 3B, 3C, BA, and 6A, and they do not “represent a logical and probable decision on the relevant issues as submitted.” See Wilbur, 393 F.3d at 1200. The failure to properly interpret the instructions on the form caused a verdict not intended by the Court or the parties because it had embedded inconsistencies.

These inconsistent answers, and the foreperson’s signing and dating of pages 1 and 2 of the form that had the “stop, sign and date” instruction, shows thé jury simply did not understand the process they were to follow. That the jury was confused by the Original Verdict Form is confirmed by their response when the Original Verdict Form was resubmitted to them with the Court’s direction that they reread the Original Verdict Form — including by reading it aloud — to ensure they understood it. Shortly after they retired to continue their deliberations, they wrote to the Court saying they did not understand the form and wanted a further explanation of it. (Tr. at 1525:23-1526:1). After the Court provided the Supplemented Verdict Form, with its more detailed and unambiguous instructions, the jury reached its unanimous verdict supported by internally consistent answers to the questions on the Supplemented Verdict Form. (Id. at 1619:3-8,1620:20-1621:5).

Federal Rule of Civil Procedure 49(b)(4) authorizes a court faced with inconsistent answers to questions on a verdict form to exercise its discretion to direct the jury to further consider the answers it gave and the verdict reached. See Fed. R. Civ. P. 49(b)(4). That is what the Court did here. After recognizing the inconsistencies on the verdict form, it consulted with counsel and decided to resubmit the matter to the jury for further deliberations with the additional instructions given. It was the proper and prudent decision. See Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 547 (5th Cir.1974) (“[I]f the jury returns two inconsistent verdicts, the trial court may resubmit the issue to them for clarification.”); Scott-Harris v. City of Fall River, 134 F.3d 427, 435 (1st Cir.1997) (“When a verdict appears to be internally inconsistent, the safest course — in the absence of irreparable damage, and none appears here — is to defer its acceptance, consult with counsel, give the jury supplemental instructions, and recommit the matter for further consideration.”); Hafner v. Brown, 983 F.2d 570, 575 (4th Cir.1992) (“If the district judge concludes that an inconsistent verdict reflects jury confusion or uncertainty, he or she has the duty to clarify the law governing the case and resubmit the verdict for a jury decision.”); Richard v. Firestone Tire & Rubber Co., 853 F.2d 1258, 1260 (5th Cir.1988) (“The district judge, who has observed the jury during the trial, prepared the questions and explained them to the jury, is in the best position to determine whether the answers reflect confusion or uncertainty. The judge also is in an excellent position to evaluate whether the jury will likely be able to resolve this uncertainty with proper guidance.”).

The Court concludes that the general verdict recorded in the Original Verdict Form contained inconsistent answers resulting from the jury’s confusion over the Original Verdict Form’s instructions. The Court further concludes it properly and prudently exercised its discretion to resubmit the case to the jury.

Even if the verdict recorded in the Original Verdict Form was a “special verdict” — which the Court concludes it was not — resubmission of the verdict to the jury still was the appropriate way to address the jury’s inconsistent answers. Only a minority of circuits have concluded that because Rule 49(a) does not specifically provide for resubmission of the special verdict to the jury in the event of inconsistent answers, resubmission to the jury is not permitted. Even though Rule 49(a) does not expressly provide for resubmission of inconsistent special verdicts, the preferred interpretation of the rule is to recognize that a court has the authority to resubmit, if resubmission might produce consistent answers upon which the Court can apply the law to reach a final decision in the case.

This is the approach our circuit takes. The Eleventh Circuit has held that resubmission of a Rule 49(a) special verdict is appropriate where the verdict contains inconsistent answers. Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir.1983) (Noting that when an “insurmountable inconsistency or ambiguity is perceived [in a special verdict], the trial court may resubmit the issue to the jury before it is dismissed or order a new trial on some or all of the issues.”). The Burger King court noted the risk of inconsistency and ambiguity when using a special verdict, and where an acceptable verdict may not have been rendered, “[o]ften the need for a new trial can be avoided by requesting resubmission to the jury.” Id. at 1489 n. 5.

For the reasons stated above, Defendant is not entitled to judgment as a matter of law on this ground.

B. New Trial Based on Jury Bias or Confusion and Excusal of the Juror Without Good Cause

Defendant argues it is entitled to a new trial because the jury was confused or biased, and because the Court excused the Juror without good cause.

1. Jury Bias or Confusion

Defendant claims that the apparent inconsistencies in the verdict recorded on the Original Verdict Form, and the jury’s decision, reflected in the Supplemented Verdict Form, to increase compensatory damages from $662,500 to $1 million and punitive damages from $2.5 million to $10 million- shows the jury was confused, and possibly biased. (Br. at 10). Defendant argues the jury’s confusion and bias was evidenced by their inability to deliberate effectively, and the jury’s change of its answers to Questions 1A and ID shows the jury was determined to find Defendant liable despite its original finding that there was no defect in the hip replacement device. (Id. at 12-13).

Defendant argues further the Court added to the jury’s confusion and bias by the way it handled the publishing of the verdict. (Id.). Defendant claims that when the Court accepted the Original Verdict Form from the jury, stated it was properly completed, and asked the courtroom deputy to read it, only to stop publication after the answer to Question 1A was read, the Court “signaled to the jury that its answer to Question 1A was wrong, since that answer triggered the abrupt halt to publication.” (Id. at 8-9).

Defendant’s argument that the partial reading of the Original Verdict Form created jury bias by signaling that the jury’s answer to Question 1A was wrong, is conjecture. When the Court, interrupted further reading of the Original Verdict Form, the Court was determined to tell the jury, in neutral terms, the next steps the Court required after it realized the inconsistencies in the form. The Court did so by stating that it wanted to explain the Original Verdict Form before asking the jury “to go back into the jury room and do whatever you think in your considered judgment is necessary for you to reach your verdict.” (Tr. at 1521:14-16). The Court explained the form as follows:

The jury form was created to walk you through findings that you are required to make and findings that you are not supposed to make if you make certain other findings, and that’s why all the instructions are in there .... [Y]ou have to follow the instructions specifically because they are an essential part of the verdict form and the way that you are supposed to reach your verdict.

I am going to give you another copy of the form [and I suggest you] just walk through or maybe even read the verdict form outloud [sic] to make sure everybody is listening to the findings that are asked to be made and what the instructions are after each of the findings is made.

And then ultimately, having fully understood the form and then fully decided and unanimously decided what your verdict — you want your verdict to be, then complete the form and tell the Court Security Officer that you have reached your verdict.

(Id. at 1521:19-1522:2, 1522:8-12, 1523:9-13). Defendant did not object to this explanation and instruction to the jury. (Id. at 1525:5-8).

The Court’s instructions did not signal to the jury that it must answer “Yes” to Question 1A, or that the Court considered the jury’s answers on the Original Verdict Form to be incorrect. The instruction’s objective was to reset the process by which the jury was required to deliberate and reset their use of the Original Verdict Form. That the jury, after retiring to the jury room, communicated to the Court that it did not understand the Original Verdict Form and needed an additional explanation of it, supports that the jury was simply confused about the form and what it required. After the Court reinstructed the jury with the complete jury charge and after receiving the Supplemented Verdict Form which the Court and counsel prepared for the jury’s use in its continued deliberations, the jury deliberated for two more days. This discredits any claim that the jury intended simply to find Defendant liable for damages. Had that been its goal, the revised form would have been complet-¿d and returned immediately, not two days later. That the deliberations may have been contentious demonstrates the jury was discussing the merits of the case robustly.

Defendant next argues the inconsistencies between the verdicts recorded in the Original Verdict Form and the Supplemented Verdict Form show the jury was confused. This argument is not persuasive. It was the internal inconsistencies in the Original Verdict Form that required resubmission, because the inconsistent findings showed the jury was confused. Resubmission “necessarily means that there might well be a difference between the first verdict and that reached after resubmission.” E.g., Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1059 (9th Cir.2003). “Such an ‘inconsistency’ will usually be considered a proper correction of a mistake in the original verdict.” Id. Had the jury not changed any of its answers, the Court would have again been presented with an internally inconsistent verdict.

Defendant relies on Riley v. K Mart Corp., 864 F.2d 1049 (3d Cir.1988), to support that the inconsistencies between the verdicts recorded in the Original Verdict Form and the Supplemented Verdict Form demonstrate the jury’s confusion and bias, requiring a new trial. (Br. at 8). Defendant’s reliance on Riley is misplaced. Riley was a slip and fall case in which the jury was asked to decide if Kmart and Riley were both negligent in causing the accident. Riley, 864 F.2d at 1050-51. If the jury concluded that both parties were negligent, the jury was instructed to determine each party’s percentage of fault, and the total damages. Id. The jury was also instructed on Pennsylvania’s comparative negligence law, and was told that, if “Riley’s negligence was equal to or exceeded that of the defendant, then the plaintiff would not win.” Id. at 1050 (internal quotations omitted). The jury was not instructed not to answer the damages question if they found Riley’s negligence equaled or exceeded Kmart’s negligence. Id. at 1051.

During their deliberations, the jury asked if they were required to determine total damages even if they concluded, that both parties were partially responsible. Id. The district court answered in the note: “Yes. Your answer to 4 is the total amount of damages, (Of that amount, plaintiff will actually get a judgment in the lesser süm — i.e., your total award, reduced by the percentage of plaintiffs own negligence, if any).” Id.

The jury found that Kmart was 30% negligent, and Riley was 70% negligent, in causing the accident. Id. The jury found that Riley had sustained $250,000 in damages. Id. If Pennsylvania had been a “pure” comparative negligence state, Riley would have recovered $75,000 in damages. Id. at 1051-52. Under Pennsylvania law, however, Riley was not entitled to recover any damages if he was 50% or more responsible for the accident. Id. at 1051.

The jury’s finding that Riley was 70% responsible for the accident precluded Riley from recovering any damages, and the district court sent the jury a note: ■ ■■

Please clarify your verdict. As explained in my original instruction (but I forgot to include it again in answering your questions), if plaintiffs own negligence exceeds that of the defendant (ie., more than 50%), plaintiff loses. Your verdict assigns,70% negligence to plaintiff (ie., a verdict for defendant), but also states the amount of damages. Please clarify.

Id. at 1052. Within minutes of being reminded of Pennsylvania’s rule on comparative negligence, the jury revised its verdict to reduce Riley’s negligence from 70% to 49.9%, increase Kmart’s negligence from 30% to 50.1%, and lower the total damages from $250,000 to $150,000. Id. at 1052, 1054. The district court then entered judgment against Kmart, awarding Riley damages in the amount of $75,150. Id. at 1052.

The Third Circuit found that the district court’s decision to resubmit the. verdict to the jury for clarification was proper because the court’s instructions when it answered the jury’s damages question created jury confusion over the apportionment of fault and damages. Id. at 1052-53. The Third Circuit concluded, however, that the district court erred when it accepted the second set of responses because they were totally inconsistent with the original answers. Id. at 1054. The Riley court noted the only consistency between the original verdict and the replacement verdict was that the jury sought to award Riley $75,000 in damages, and found that the jury, upon resubmission, revised their finding of fault and the total damages to make a $75,000 damage award. Id. The Third Circuit held there was “no principled reconciliation of such blatant inconsistencies,” finding this was not one where the “jury rendered inconsistent answers which are explicable in light of the complexity or multiplicity of the questions asked of it.” Id. at 1054-55. In view of the jury’s outcome-determinative verdict changes, the Third Circuit vacated the judgment and remanded the case for a new trial. Id. at 1054-55.

Riley does not apply here. The original verdict in Riley was not internally inconsistent — the verdict sought answers to specific factual questions, and the court did not instruct the jury to refrain from assessing the amount of damages even if they also concluded that Riley was more than 50% responsible for the accident. Id. at 1052 (“[T]he jury’s first answers could be viewed as consistent, by reading them as saying that Riley suffered $250,000 in damages from the fall but that [Kmart] was only 30% responsible and therefore not under a legal duty to compensate Riley .... ”). The Original Verdict Form in this case instructed' the jury to cease its deliberations if it concluded that the hip replacement device did not have a design defect. The Original Verdict Form completed by the jury had obvious internal inconsistencies, including because the answers to Questions 1A and ID were inconsistent with the jury’s finding of liability for negligent misrepresentation, and the award of compensatory and punitive damages based on the misrepresentations. The inconsistencies in the Original Verdict Form can be explained by the “complexity or multiplicity of the questions asked of [the jury],” as evidenced by the fact the Original Verdict Form was seven pages and the possibility the jury would have to answer twenty-four questions as it worked through a serious of questions and instructions depending upon the answers given. See id. at 1054; (Original Verdict Form at 1-7). As the Court already noted, the stop, sign and date instruction obviously was misunderstood by the jury, leading to the internal inconsistencies in their findings— inconsistencies that likely were not facially apparent to the jury even when the form was completed.

Unlike in Riley, the jury here did not return a verdict minutes later by simply changing its answers to conform to a predetermined desired outcome. The jury requested additional clarification on the Original Verdict Form’s instructions, stating they did not understand the form. After being provided the Supplemented Verdict Form with its elaborated instructions and, after the Court repeated its entire charge, the jury deliberated for two additional days before it reached the verdict recorded in the Supplemented Verdict Form. (Tr. at 1563:24-1564:21, 1619:3-8). When it did, the award of damages to Plaintiff, while changing in amount, did not change the jury’s decision, apparent even in the Original Verdict Form, that Plaintiff had been damaged and that Defendant’s conduct supported an award of punitive damages. That is, there is nothing in the jury’s continued deliberations to suggest that the jury simply sought to find Defendant liable regardless of the burden of proof Plaintiff was required to meet. In fact, the jury notified the Court during its continuing deliberations they were unable to reach a unanimous verdict. (Id. at 1574:8-10). The Court instructed them to continue deliberating. The next day, the Court received a further note from one of the jurors that stated the deliberations were taking an “extensively long time as one of the jurors doesn’t look at the evidence through the perspective of the law -” (Id. at 1583:8-1584:9). This discredits entirely Defendant’s claim that the jury did not accept its duty to responsibly apply the law to the facts to reach a unanimous decision. All indications are the jury did not have a predetermined outcome but responsibly deliberated on a verdict and finally recorded it correctly on the Supplemented Verdict Form given to them.

The jury’s apparent confusion over the instructions on the Original Verdict Form, their response that they did not understand the form, and that they required two additional days to deliberate after the Court expanded the verdict form to provide more specific instructions, demonstrates that the verdict was the result of unbiased deliberations by a jury that was no longer confused about the meaning of the instructions it was required to follow.

Defendant has not shown that 'the jury’s verdict was the result of confusion or bias, or that the different answers between the verdicts recorded on the Supplemented Verdict Form and the Original Verdict Form require the Court to reject the verdict. Defendant is not entitled to a new trial on this ground.

2. Excusal of Juror

Defendant moves for a new trial on the grounds that the Court dismissed the Juror without good cause, and his dismissal prejudiced and confused the jury. (Br. at 13). Defendant claims the Juror disagreed with his fellow jurors based on a different “view of the evidence,” and that the Court should not have questioned the Juror on his understanding of the instructions in the verdict form. (Id. at 14-15).

“During trial or deliberation, the coui’t may excuse a juror for good cause.” Fed. R. Civ. P. 47(c). Under Rule 47(c),

the court may in appropriate circumstances excuse a juror during the jury deliberations without causing a mistrial; Sickness, family emergency or juror misconduct that might occasion a mistrial are examples of appropriate grounds for excusing a juror. It is not grounds for the dismissal of a juror that the juror refuses to join with fellow jurors in reaching a unanimous verdict.

Fed. R. Civ. P. 47(c) advisory committee’s note to 1991 amendment. This list is not exhaustive. See Interpool Ltd. v. Patterson, 874 F.Supp. 616, 618 (S.D.N.Y.1995). “The decision to remove a juror is generally entrusted to the sound discretion of the trial judge whenever facts are presented which convince the trial judge that the juror’s ability to perform [his] duty as a juror is impaired.” United States v. Davis, 708 F.3d 1216, 1222-23 (11th Cir.2013).

A trial court, after deliberations have begun, is entitled to investigate whether good cause exists to dismiss a juror. See United States v. Thomas, 116 F.3d 606, 620 (2d Cir.1997). “Whether and to what extent a juror should be questioned regarding the circumstances of a need to be excused is [] within the trial judge’s sound discretion.” United States v. Reese, 33 F.3d 166, 173 (2d Cir.1994).

On November 24, 2015, the Court received two notes from the jury referring to a juror’s participation in deliberations. The first note, from a juror with personal obligations that were being interfered with due to the length of the trial, stated that the deliberations were taking an “extensively long time as one of the jurors doesn’t look at the evidence through the perspective of the law ....” (Tr. at 1583:8-1584:9). The second note, this one from the foreperson, stated: “We are unable to provide a verdict and complete the.verdict form. We have one juror that has decided no longer to participate in the jury and the process to reach a unanimous verdict.” (Id. at 1586:3-7).

The Court disclosed these notes to counsel for the parties. Because the nature of the conduct referred to in the notes was not clear, the Court discussed with counsel whether it was appropriate to determine which of the jurors was referenced in the notes and ask the juror about his or her participation in the deliberations. (Id. at 1588:11-16). Counsel agreed with the Court’s suggestion to ask the foreperson to identify the subject of the notes and they agreed that the Court should ask that juror about his or her participation. (Id.). The Court told the parties that counsel would be present at this discussion. (Id. at 1593:4-7). The foreperson identified the Juror, who was referred to in both notes, and the Court, in the presence of counsel for the parties, spoke with the Juror in chambers.

The Court, during the initial round of questions, asked the Juror, among other things, the following:

Let’s say there is a question and you deliberated on that, and you say no, I agree with that, and they checked that box, and then there is an instruction that said if you answer the question a certain way, then you have to do this, or if you answer this way, then you do this.

Is there one of those instructions that you can say — -it says I have to do that, but I’m not willing to do that?

(Id. at 1606:6-13). The Juror responded: “Yes.” (Id. at 1606:14). The Juror was then excused from chambers.

After the Juror left chambers, the Court stated the following to counsel for the parties: •

I think his statement that he cannot follow an instruction on the jury form is a problem^ and it was pretty specific that if he agreed "with a decision and they checked it, but th¿n couldn’t follow an instruction — we have had a long discussion about the instructions, I believe, and I believe we agreed on it, and even since it’s elaborated on, I think it’s more clear that those instructions are legally required.

And I think he’s saying that there is just one that he — that leads him to a conclusion that he can’t agree with, and therefore he’s not — he can’t follow the instruction.

And if you .can’t — he has to follow the law as he’s instructed, which would include the jury form. And somebody who doesn’t — isn’t willing to follow the instructions that I give to them, including on the jury form, that’s good cause to excuse him.

(Id. at 1607:3-19).

Counsel for Defendant stated:

The only — I agree with that. The only question I' had, because I think Your Honor was right in hearing the same thing that I thought he was saying, it wasn’t clear to me if he was talking about he was the one unable to follow the instructions or he thinks he is and everyone else isn’t.

(Id. at 1607:22-1608:2). The Court agreed to Defendant’s request to clarify that the Juror was the member of the jury unable to follow the instructions. The Juror was recalled to chambers and questioned again about his deliberation participation. The follow-up questioning was as follows:

THE COURT: So I don’t want to focus on any specific question, but has there been during your deliberations a question where you have voted with the others on how to answer the question— have there been times when you agreed with the answer to the question? Has that happened?

JUROR: Yes, it has.

THE COURT: And then when you go down and look at the instruction, is the answer to that question an instruction that you disagree with and that you haven’t been able to follow?

JUROR: Haven’t been able to follow? In some instance, yes.

THE COURT: And is that because you disagree that the instruction would lead to a result that you think should happen?

JUROR: My answer is different from what some of the others had, yes.

THE COURT: And when you say your answer — you answered differently, there are others that say here is what the instruction says, this is what we have to do, is it your position is I know that’s what the instruction says, but I can’t agree with it because I think that would lead to the wrong result?

JUROR: Yes, sir.

(Id. at 1609:11-1610:10). After the Juror left chambers, the Court stated: “I think that clarifies that he is unable to follow the instructions on the verdict form. Do you agree?” (Id. at 1610:16-18). Defendant’s counsel replied: ‘Yes, sir.” (Id. at 1610:19). Counsel for Defendant agreed that the Juror should be excused for cause. (Id. at 1607:3-1608:2,1610:19).

Despite defense counsel’s agreement that the Juror should be excused, Defendant now characterizes the Juror’s responses to the Court’s questions as the Juror disagreeing with the other jurors based on his view of the evidence. (Br. at 14). Defendant claims now that the Juror:

[Essentially answered yes when asked if he “disagree[d] with the conclusion and verdicts that others want to reach, and that makes you not want to deliberate any further because you reached a conclusion that is different from the rest?” ([Tr.] at 1602:21-24)

[SJtated that disagreement with a principle of law was “not the whole of it. It’s part of what we have got on the table up there.” (Id. at 1603:17-24)

[Responded that the jurors were shouting at him, in response to the Court’s question, “Is it that whatever different views people have, that you have a view that’s different than theirs, and as a result of that you are not going to persuade them and they are not going to persuade you?” (Id. at 1604:5-10)

[S]tated that he “differ[ed] from, you know, something that they pose and tried to .go into it myself, they tell me that I shouldn’t use that, I can’t use that, that’s not included in it. And I’m like, well, how am I supposed to make a decision if I can’t, you know, express myself.” (Id. at 1604:19-24).

(Br. at 14-15). These carefully selected responses of the Juror do not accurately describe the Juror’s responses and his statements — as Defendant’s counsel at the in-chambers discussion agreed — that he could not follow the Court’s instructions. Even out of context, as Defendant presents them, these record citations do not support that the disagreement was based on differing views of the evidence.- The record is that early in the discussion, the Juror acknowledged that a “principle of law,” while “not the whole of it,” influenced his deliberation participation. This statement, along with his other responses to the Court, show that his disagreement with his fellow jurors was not based on a disagreement over the merits of the case, but centered on his refusal to follow the Court’s instructions, a conclusion with which Defendant’s counsel agreed before the Juror, was excused.

The record supports that there was reason to dismiss the Juror for his misconduct in refusing to follow the Court’s instructions. The Juror’s responses to the Court’s questions during the in-chambers discussion established clearly that he was unable to follow the instructions of the Court. The Juror was asked whether his “position [was] I know that’s what the instruction says, but I can’t agree with it because I think that would lead to the wrong result?” (Tr. at 1610:6-9). The Juror responded: “Yes, sir.” (Id. at 1610:10). The Juror’s refusal to follow the Court’s instructions as contained on the Supplemented Verdict Form, constituted good — if not compelling — cause to dismiss him from the jury. E.g., Fed. R. Civ. P. 47(c); United States v. Godwin, 765 F.3d 1306, 1316 (11th Cir.2014) (“Once deliberations have begun, a district court may excuse a juror for good cause, which includes that juror’s refusal to apply the law or to follow the court’s instructions.”). Defendant is not entitled to a new trial on this ground.

C. Substantive Claims and Defense

1. Comment k Defense

Defendant next argues it is entitled to judgment as a matter of law or, in the alternative; a new trial, on Plaintiffs strict liability design defect claim because Comment k to Section 402A of the Restatement (Second) of Torts exempts Defendant from a strict liability claim for design defect. (Br. at 16).

Section 402A of the Restatement (Second) of Torts addresses the special liability that applies to sellers of products that cause physical harm to consumers. Section 402A states:

(1) 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 consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965). Comment k provides that manufacturers of certain specific products can be held strictly liable only under certain circumstances. “Comment k serves as an affirmative defense when the product is incapable of being made safe under present technology, but the social need for the product warrants its production.” Tansy v. Dacomed Corp., 890 P.2d 881, 885 (Okla.1994). Comment k provides:

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully .justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, p