On both verdict forms, jurors were presented with three claims and asked to identify which ones formed the basis of their punitive damages award: “not reasonably safe as designed,” “failure to warn with product” and “failure to warn after sale.” The two juries marked “yes” for all three options, awarding $60 million punitive damages in Clinger v. Pharmacia LLC and $784 million in Bard v. Pharmacia LLC.
Monsanto points out jurors did not assign punitive damages values to those three questions. The company will argue that the verdicts must be reversed based on its contention that post-sale failure to warn can’t be untangled from the full punitive damages amount.
Counsel for the plaintiffs, however, says the wording of the Clinger and Bard verdict forms is enough to preserve the punitive damage awards in those cases in light of the Erickson ruling.
“A verdict can be upheld on any ground,” Jones said, “so it is unlikely the punitive damages awarded will be overturned given that the juries found it appropriate to award punitive damages for both defect and failure to warn.”
