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Trejo v. Johnson & Johnson - 13 Cal. App. 5th 110, 220 Cal. Rptr. 3d 127 (2017)

Rule:

The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict or irreconcilable findings. Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. The appellate court is not permitted to choose between inconsistent answers. The proper remedy for an inconsistent special verdict is a new trial. A court reviewing a special verdict does not infer findings in favor of the prevailing party, and there is no presumption in favor of upholding a special verdict when the inconsistency is between two questions in a special verdict. The standard of review for inconsistency in a special verdict is de novo. 

Facts:

After taking an over-the-counter ibuprofen medication manufactured and sold by McNeil Consumer Healthcare (McNeil), plaintiff Christopher Trejo suffered a reaction in the form of a rare skin disease, Stevens-Johnson syndrome (SJS), and the more severe variant, toxic epidermal necrolysis (TEN) (collectively SJS/TEN). He sued McNeil and its corporate parent, Johnson & Johnson, on various theories of products liability, four of which went to trial: strict liability failure to warn and negligent failure to warn, based on defendants' failure to include the symptoms of SJS/TEN (skin reddening, rash, and blisters) on the medication's warning label, and strict liability design defect and negligent design defect, based on McNeil's failure to sell an allegedly safer product, dexibuprofen (an isomer or component of ibuprofen) rather than ibuprofen. Returning a special verdict, the jury found McNeil liable for negligent failure to warn (but not for strict liability failure to warn), negligent design defect, and strict liability design defect under the consumer expectation test (but not under the risk-benefit test). The jury found Johnson & Johnson liable for strict liability design defect on a consumer expectation theory (but not on a risk-benefit theory), and not liable on plaintiff's other claims.

Issue:

Should a plaintiff's design defect claims be retried due to the inconsistency in the jury's verdict finding that the drug's manufacturer liable for negligent failure to warn and with the jury's finding that the manufacturer was not liable for strict liability failure to warn?

Answer:

No

Conclusion:

The Court held that the jury's verdict finding that the drug's manufacturer liable for negligent failure to warn was fatally inconsistent with the jury's finding that the manufacturer was not liable for strict liability failure to warn. The special verdict form for negligent failure to warn was defective for failing to include the element of whether a reasonable manufacturer under the same or similar circumstances would have warned of the danger. Trejo's negligent and strict liability design defect claims, which were based on defendants' failure to sell dexibuprofen instead of ibuprofen, were preempted under federal law. The consumer expectation test was not properly applied. None of Trejo's design defect claims could be retried.

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