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Taylor v. Mentor Worldwide LLC

United States Court of Appeals, Eleventh Circuit

October 8, 2019

TERESA TAYLOR, Plaintiff-Appellee,
v.
MENTOR WORLDWIDE LLC, MENTOR CORPORATION, Defendants-Appellants. In re: MENTOR CORP. OBTAPE TRANSOBTURATOR SLING PRODUCTS LIABILITY LITIGATION. TERESA TAYLOR, Plaintiff-Appellant,
v.
MENTOR WORLDWIDE LLC, MENTOR CORPORATION, Defendants-Appellees.

          Appeals from the United States District Court for the Middle District of Georgia D.C. Docket Nos. 4:08-md-02004-CDL, 4:12-cv-00176-CDL

          Before TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN, [*] District Judge.

          KAPLAN, DISTRICT JUDGE.

         Teresa Taylor here sues Mentor Worldwide LLC ("Mentor") and Mentor Corporation[1] for compensatory and punitive damages for injuries she suffered as a result of the surgical implantation of a polypropylene mesh sling manufactured by Mentor to treat her stress urinary incontinence. The jury found Mentor liable to Taylor for failure to warn both before and after implantation, defective design, and negligence. It awarded $400, 000 in compensatory and $4 million in punitive damages. Mentor moved for judgment as a matter of law or, in the alternative, for a new trial or to reduce the punitive damages award. The district court upheld the jury's verdict with respect to liability and compensatory damages, but concluded that the punitive damages award exceeded Florida's statutory cap and consequently reduced the punitive damages award to $2 million.

         Mentor now appeals. It contends that it is entitled to judgment as a matter of law because the district court erred in (1) receiving certain expert testimony on the issue of specific causation and (2) applying an incorrect causation standard to Taylor's failure to warn claims. Mentor argues, in the alternative, that it is entitled to a new trial on the basis of various evidentiary rulings by the district court or to an amended judgment eliminating or further reducing the punitive damages award. Taylor cross appeals, arguing that the district court erred in reducing the punitive damages awarded by the jury. We find no error in the judgment and therefore affirm.

         I. BACKGROUND

         This is one of more than 800 cases that were consolidated by the Judicial Panel on Multidistrict Litigation into the multidistrict proceeding known as In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, No. 4:08-MD-2004 (CDL). The cases arise from claims of medical complications allegedly associated with a polypropylene mesh sling manufactured by Mentor called ObTape. One such case, brought by Taylor, who was surgically implanted with ObTape in 2004 to treat stress urinary incontinence, was selected to go to trial as a bellwether.

         Taylor claimed defective design, negligence, and failure to warn both before and after implantation of the ObTape. She contended that her ObTape implant caused her to suffer from a thinning of her urethral wall and from chronic bladder inflammation (also called cystitis). At trial, she endeavored to prove that her injuries resulted from two design defects in the ObTape, namely, a small pore size, which allegedly did not allow adequate tissue ingrowth, and an alleged propensity to degrade and shed polypropylene particles in the body. She relied at trial on several expert witnesses to establish both general causation - that is, that ObTape was capable of causing the types of injuries from which she suffered - and specific causation - that is, that the ObTape implanted in her in fact caused her injuries.

         We begin with an overview of the evidence offered and objections made at trial to the extent such evidence and objections are relevant on appeal.

         A. General Causation

         1. Porosity of ObTape

         Several witnesses testified, in their respective expert opinions, that ObTape's small pore size did not allow adequate tissue ingrowth, which in turn led to inflammation, erosion, and infection.

         One such witness was Dr. William Hyman, a professor emeritus of biomedical engineering at Texas A&M University. Dr. Hyman testified that large pores are better than small pores in a mesh sling implant such as ObTape. He explained that the goal is for the tissue to grow into the implant and to "stabilize it and hold it in place" in order to prevent the implant from "moving relative to the tissue." According to Dr. Hyman, if an implant has "big holes and relatively little material," the "[t]issue can grow through the holes, find other tissue on the other side, and anchor it all in place, and that helps control erosion."[2] He testified also about the ObTape sling in particular and opined that it had a "uniquely bad" design in part because it had a small pore size as well as smaller numbers of pores. In other words, according to Dr. Hyman, the small pore size of ObTape prevented adequate tissue ingrowth, which then permitted the ObTape to move around the implant area and cause erosion.[3]

         Dr. Andrew Siegel, a urologist, testified along similar lines, saying that, in his experience with his patients, ObTape "didn't develop the typical tissue ingrowth and incorporation that [he] had come to expect with some of the previous generation sling materials" and that the implant's pores were not big enough to allow adequate tissue ingrowth.

         2. Tendency to Degrade

         Dr. Ahmed El-Ghannam, a professor of biomaterials at the University of North Carolina, testified on the degradation theory. He said that he had conducted a series of scientific experiments on ObTape, including an electron microscope examination of the product after immersing it in a physiological solution, a Fourier Transform Infrared Spectroscopy, a gas chromatography/mass spectrometry analysis of a physiological solution after the ObTape had been immersed in it, a differential scanning calorimetry, and an x-ray diffraction analysis. Each analysis, he said, confirmed that ObTape, although intended to be an inert, permanent material, had a propensity to degrade and shed polypropylene particles in the body. He testified that this degradation and shedding of particles sparked a reaction by the body's immune system, causing the body continuously to release hydrogen peroxide - a strongly acidic fluid - in order to destroy the implant. The response by the body's immune system caused tissue inflammation, erosion of tissue and, in some cases, infection. If the ObTape were inert, he testified, it still would stimulate the body's immune system, but because of the size of the sling, the body would form a fibrous capsule around the implant to encase it which, in turn, would cause the immune system to stop attacking the foreign object.

         Dr. El-Ghannam testified further that it was not a matter of whether degradation would occur, but when. He opined that any patient implanted with ObTape would suffer the effects of degradation because, after an initial incubation period during which the rate of degradation would be slow, the rate of degradation would increase dramatically, necessitating the removal of the ObTape.

         B. Specific Causation

         On the question of specific causation, Taylor proffered Dr. William Porter, a urogynecologist, as an expert witness to show that ObTape in fact caused the chronic inflammation and pain she claimed to have suffered. In order to explain the significance of Dr. Porter's testimony at trial, it is useful first to explain the opinions given in both his expert report and deposition.

         Taylor disclosed Dr. Porter as a causation expert and provided an expert report prior to trial as required by Rule 26. In his Rule 26 report, Dr. Porter opined "to a reasonable degree of medical and scientific probability that [Taylor's] injuries were caused by complications attributable to the Mentor ObTape product at issue in this case." In support of that opinion, he noted that medical literature indicated the ObTape had a higher incidence of erosion than did other such slings. Moreover, that same literature revealed that ObTape had a smaller pore size than did competing products, which increased the likelihood of infection. Dr. Porter noted that complications generally associated with implantation of ObTape included, among other things, "chronic inflammation of tissue" and "erosion of mesh into tissues." The resulting injuries included vaginal and pelvic pain, inflammation, and bladder problems.

         In summary, the report indicated that Dr. Porter had concluded, based on his physical examination of Taylor and a review of her medical records, that she suffered pain and chronic inflammation that was primarily attributable to ObTape's small pore size and to a "tightening/contraction" process that resulted from ObTape's faulty design. Dr. Porter reached his conclusion that ObTape was the culprit largely through a process of elimination. He considered other possible causes for Taylor's maladies but, upon examining her, was largely "able to rule out these other potential causes (except Arias Sling)" because Taylor's symptoms started after placement of the ObTape. He therefore concluded "within a reasonable degree of medical certainty, that the most likely cause of her . . . chronic inflammation is the ObTape."

         In his deposition, Dr. Porter expressed less confidence in the opinions described above. In response to questions by defense counsel, he conceded that none of Taylor's medical records showed an erosion of her ObTape. He conceded also that there could be causes other than ObTape for Taylor's chronic bladder inflammation. Indeed, at one point in his deposition, Dr. Porter stated that he could not say "to a reasonable degree of medical probability" that her ObTape caused her chronic inflammation. Further, Dr. Porter expressed skepticism about Dr. El-Ghannam's degradation theory.

         At trial, Taylor's counsel asked Dr. Porter to assume that ObTape does degrade, as Dr. El-Ghannam had opined and testified. Mentor objected that the assumption would pose an improper hypothetical, but the district court overruled the objection. It ruled that Dr. Porter could answer questions based on the assumption he had been asked to make and that the jury ultimately could decide whether to credit Dr. El-Ghannam's degradation theory. Assuming Dr. El-Ghannam's theory was valid, and based also on the absence of anything else in Taylor's medical history that could explain her chronic bladder inflammation, Dr. Porter testified that the inflammation of her bladder most likely was caused by ObTape.

         Later in his trial testimony, Dr. Porter stated his opinion that ObTape caused a thinning of Taylor's urethral tissue, which he described as an "erosion" of the urethra. Dr. Porter had not opined on Taylor's urethral thinning in his report or deposition, but he had noted that her medical history indicated that her urethra had thinned near the site of the ObTape and that relevant literature had indicated a greater incidence of erosion of the mesh into tissues and of bladder problems as a result of using ObTape. Dr. Porter conceded that his opinions had "evolved and changed" in this respect as a result of his having gone over Taylor's medical records "with a fine- tooth comb" and answering some of the questions Taylor's attorneys had posed to him after his deposition.

         At the conclusion of Dr. Porter's direct examination, Mentor moved to strike his testimony. It argued that the opinions offered by Dr. Porter at trial were not disclosed in his Rule 26 report and that they differed from his deposition testimony. Specifically, Mentor noted that Dr. Porter had said during his deposition that he didn't believe in degradation. In addition, Mentor pointed out that Dr. Porter never had mentioned "urethral erosion" prior to trial and that he had said in his deposition that Taylor's bladder inflammation was not caused by ObTape. It stated also that if the court were unwilling to strike the testimony, counsel would like an overnight continuance to prepare its cross-examination of Dr. Porter. It never asked for a mistrial.

         The district court denied Mentor's motion to strike Dr. Porter's testimony, but granted the alternative relief it requested: the opportunity to prepare overnight for Dr. Porter's cross-examination. Defense counsel cross-examined Dr. Porter the following day. Mentor's attorney pointed out the inconsistencies between the doctor's deposition testimony and his trial testimony and probed also the urethral erosion issue. Specifically, in response to Mentor's questions, Dr. Porter admitted that he could not rule out the surgical injection of Durasphere as a potential cause of Taylor's urethral thinning and acknowledged that the surgeon who actually had observed Taylor's urethra had opined that it was the Durasphere that caused this problem.

         Notably, in his Rule 26 report, his deposition, and his trial testimony, Dr. Porter based his conclusion that the ObTape had caused Taylor's injuries on the fact that he had ruled out all other potential causes. On cross, however, Mentor was able to elicit a concession from the doctor that not only was Durasphere a possible culprit, but also that there were other possible causes, including Taylor's hysterectomy and corresponding post-menopausal state as well as the subsequent surgical insertion of an Aris sling.

         Mentor's counsel also elicited from Dr. Porter an admission that he had not personally seen any evidence to support Dr. El-Ghannam's degradation theory. Dr. Porter even stated that he did not believe in the theory that the mesh sling shed polypropylene particles. More than that, defense counsel prompted Dr. Porter to admit that he himself had inserted into hundreds of patients non-ObTape mesh-type slings that Dr. El-Ghannam likewise had decried as degradable: an admission that suggested that Dr. Porter remained skeptical of the theory.

         Mentor renewed its motion to strike Dr. Porter's testimony, arguing that the opportunity to prepare for cross overnight had failed to alleviate the prejudice resulting from Dr. Porter's previously undisclosed opinions. The district court denied the motion, concluding that Mentor had done "a fine job in that cross-examination" such that it was "clear . . . there was no prejudice."

         C. The Jury Verdict

         At the conclusion of the nine-day trial, Mentor moved pursuant to Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a matter of law. The district court reserved. The jury then returned a verdict with the following specific findings:

1. The ObTape implanted in Taylor had a design defect that was a legal cause of her injuries.
2. Mentor failed to provide Taylor's physician with an adequate warning about ObTape prior to her implant surgery, and the failure to provide that adequate pre-implant warning was a legal cause of Taylor's injuries.
3. Mentor failed to provide Taylor's physician with an adequate warning about ObTape after her implantation surgery, and the failure to provide that adequate post-implant warning was a legal cause of the injuries.
4. Mentor was negligent with respect to the ObTape used in Taylor's implantation surgery, and that negligence was a legal cause of her injuries.
5. Taylor proved by clear and convincing evidence that punitive damages should be awarded against Mentor; that Mentor had a specific intent to harm her at the time of Taylor's injuries and did in fact harm her; and that Mentor was motivated solely by unreasonable financial gain and actually knew about both the unreasonable danger of the conduct and the high likelihood of injury resulting from the conduct.

         The jury awarded Taylor $400, 000 in compensatory and $4 million in punitive damages.

         D. Mentor's Post-Trial Motions

         Following trial, Mentor renewed its motion for judgment as a matter of law under Rule 50(b) and moved in the alternative for a new trial under Rule 59 or to amend the judgment to reduce the punitive damage award to no more than $1.2 million.

         The district court issued a thorough opinion in which it denied Mentor's motions for judgment as a matter of law and for a new trial but reduced the punitive damage award to $2 million (and thus the total judgment to $2.4 million) after concluding that the evidence at trial was insufficient to support the jury's finding that Mentor had the requisite "specific intent." In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004 (CDL), 4:12-cv-176 (Taylor), 2016 WL 6138253 (M.D. Ga. Oct. 20, 2016).

         Mentor and Taylor each appealed. Mentor argues that it is entitled to:

(1) Judgment as a matter of law both because the district court (A) erred in failing to strike Dr. Porter's testimony insofar as it expressed previously undisclosed opinions, and (B) applied an incorrect causation standard to Taylor's failure to warn claims;
(2) A new trial because the district court erred in:
A. admitting (i) testimony by Dr. El-Ghannam on degradation theory absent evidence of the dose-response relationship, (ii) evidence of vaginal erosion injuries experienced by other women who were implanted with ObTape, (iii) evidence of Mentor's decision to take ObTape off the market in violation of the district court's in limine ruling and remedying that violation with a curative instruction, and (iv) evidence of foreign regulatory action related to ObTape, and
B. excluding evidence of the Food and Drug Administration's 510(k) clearance of ObTape; and
(3) An amended judgment eliminating the punitive damage award or reducing it pursuant to Florida statutory limits.

         Taylor argues that the jury verdict of $4 million should be reinstated because the district court erred in concluding that the evidence offered at trial was insufficient to support the jury's finding that Mentor had a specific intent to harm her.

         II. DISCUSSION

         A. Motion for Judgment as a Matter of Law

         We review de novo a district court's ruling on a motion for judgment as a matter of law, considering the evidence and the reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1313 (11th Cir. 2017) (citing Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001)). Judgment as a matter of law is "appropriate only if the evidence is so overwhelmingly in favor of the moving party that a reasonable jury could not arrive at a contrary verdict." Id. (quoting Middlebrooks, 256 F.3d at 1246) (internal quotation marks omitted). A district court's evidentiary rulings, however, are reviewed "only for a clear abuse of discretion" and must be affirmed "unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard." Id. (quoting United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009)) (internal quotation marks omitted).

         Mentor asserts that it is entitled to judgment as a matter of law or, alternatively, to a new trial because the district court failed to strike Dr. Porter's testimony to the extent he offered opinions at trial that had not been disclosed in his Rule 26 report. Notably, Mentor does not argue that it was entitled to judgment as a matter of law if the testimony properly was admitted. Because Mentor's motion is based entirely on the district court's evidentiary ruling, we review for abuse of discretion.[4]

         Mentor's argument is based on Rule 26 of the Federal Rules of Civil Procedure, pursuant to which parties are obliged for any expert witness they plan to call at trial to provide a written report containing, among other things, "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed.R.Civ.P. 26(a)(2)(B)(i). Rule 26 imposes a duty to supplement an expert report that is "incomplete or incorrect." Fed.R.Civ.P. 26(e). Mentor argues that Taylor violated this duty with respect to Dr. Porter because of the inconsistencies between his trial testimony and his Rule 26 report.

         We hold that the district court did not abuse its discretion in not striking Dr. Porter's testimony.

         As an initial matter, we note that the only true inconsistency between Dr. Porter's Rule 26 report and his trial testimony had to do with the "urethral erosion" issue. Although Dr. Porter expressed doubt about Dr. El-Ghannam's degradation theory during his deposition, it was not inconsistent either with Dr. Porter's Rule 26 report or with his deposition testimony for him to (a) assume that Dr. El-Ghannam's theory was valid and then (b) respond to a hypothetical question based on that assumption. Further, Dr. Porter clearly opined in his Rule 26 report that ObTape caused or at least contributed to Taylor's chronic bladder inflammation. His deposition testimony on that point was more equivocal, offering a prime opportunity for impeachment at trial. But Dr. Porter's trial testimony as to causation was not inconsistent with his Rule 26 report, which was the basis for Mentor's motion to strike.

         As to the urethral erosion issue, we have no doubt that Dr. Porter's Rule 26 report should have been supplemented prior to trial to flesh out his "evolved" opinion on that issue. We do not condone Taylor's conduct in failing to make that required disclosure. But striking Dr. Porter's testimony was not the only viable response under the circumstances.[5]

         Rule 37 gives a trial court discretion to decide how best to respond to a litigant's failure to make a required disclosure under Rule 26. See Fed. R. Civ. P. 37(c)(1) (stating that "[i]n addition to or instead of [the] sanction [of exclusion]" the court may: (1) order payment of the expenses caused by the failure, (2) "inform the jury of the party's failure," and (3) "impose other appropriate sanctions"). The district court's decision to allow Mentor additional time to prepare for Dr. Porter's cross-examination, rather than striking his testimony entirely, was not an abuse of that discretion.

         An abuse of discretion occurs only when the district court relies on a clearly erroneous finding of fact or an errant conclusion of law, or improperly applies the law to the facts. Adams v. Austal U.S.A., LLC, 754 F.3d 1240, 1248 (11th Cir. 2014). The district judge here correctly stated and properly applied the governing legal principles. His decision on the motion to strike was based on his factual finding that the nondisclosure at issue was "harmless" given the additional time Mentor had to prepare for Dr. Porter's cross-examination.[6] In re Mentor Corp., 2016 WL 6138253, at *6 n.3. That finding was not clearly erroneous. Again, the only previously undisclosed part of Dr. Porter's opinion was his statement that Taylor had a "urethral erosion" - a term that he clarified in his cross-examination referred to a "thinning" of her urethral tissues. Any unfair surprise as to that issue was minimal because "erosion" generally was a topic of extensive pretrial discovery and Dr. Porter specifically disclosed in his Rule 26 report his belief that ObTape could cause "erosion of mesh into tissues or organs."[7] Further, Dr. Porter indicated in his Rule 26 report that Taylor's medical history showed that her urethra was very thin where the ObTape had been removed that he had found during his own examination that Taylor had "an irregular trapezoid shape mesh along the urethra. It feels that the edges have rolled." This description was suggestive of an injury to the urethral tissues posited by Dr. Porter to have been caused by ObTape.

         We conclude that the trial court acted well within the bounds of its discretion in allowing the jury to consider Dr. Porter's testimony relating to specific causation. Mentor was not entitled to judgment as a matter of law.[8]

         B. Motion for a New Trial

         "'We review the denial of a motion for a new trial only for an abuse of discretion.'" Walter Int'l Prods., Inc. v. Salinas, 650 F.3d 1402, 1407 (11th Cir. 2011) (citing St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1201 n.16 (11th Cir. 2009)). "Deference '"is particularly appropriate where a new trial is denied and the jury's verdict is left undisturbed."'" Id. (quoting St. Luke's, 573 F.3d at 1201 n.16 (quoting Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987))). A trial court's decisions regarding the admissibility and reliability of expert testimony also are reviewed for abuse of discretion, United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc) (citing Gen. Elec. Co. v. Joiner, 522 U.S.136, 141-43 (1997)), and will only be reversed if they are "manifestly erroneous." Id. (quoting Joiner, 522 U.S. at 142) (internal quotation marks omitted); see also United States v. Brown, 415 F.3d 1257, 1264-66 (11th Cir. 2005).

         Mentor argues, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that it is entitled to a new trial because the district court abused its discretion in admitting the general causation testimony given by Dr. El-Ghannam.[9] It asserts that Dr. El-Ghannam's testimony on the degradation and shedding of the ObTape mirrors testimony on substance toxicity and that it therefore was necessary for Dr. El-Ghannam to address the "dose-response relationship" - that is, how much of the substance was necessary to create a risk of harm to Taylor.

         Mentor relies entirely on a group of toxic tort cases involving allegedly toxic drugs and chemicals. In particular, Mentor concentrates its attention on an analogy to McClain v. Metabolife International, Inc., 401 F.3d 1233 (11th Cir. 2005), a toxic tort case involving a weight loss supplement called Metabolife 356. In McClain, we reversed a jury verdict and remanded against Metabolife after concluding that the district court erroneously had admitted the plaintiffs' expert testimony on causation. The plaintiffs there alleged that the supplement, which contained ephedrine and caffeine, caused them to suffer from heart attacks and strokes. In such cases, given the "importance of individual responses to toxins," a plaintiff must demonstrate both the level of exposure to the allegedly harmful chemical that is hazardous to a human being and the amount of the chemical to which the plaintiff was exposed. Id. at 1241-42 (citations omitted).[10] The evidence at trial was sufficient to find that ephedrine - and specifically the amount of ephedrine in Metabolife 356 - was found in hundreds of over-the-counter products then available to the public. In addition, one of the expert witnesses at trial testified that the effects of the supplement would "vary from patient to patient" and in fact might not be harmful at all. This evidence signaled that the dose-response relationship was particularly relevant in the case of Metabolife 356. Id. at 1241. We therefore concluded that the expert witnesses' failure to opine on the dose of Metabolife 356 required to injure someone was fatal in the face of a Daubert challenge. Id. at 1241, 1252.

         The case before us is markedly different. The dose-response relationship is not implicated here. The logic of McClain therefore is not transferrable to this case. In McClain, the missing piece - among others - was how much ephedrine and caffeine were required to start a chain reaction leading to a stroke or heart attack. That piece was important because there evidently was a level of ephedrine and caffeine that a person could consume safely. But in this case, Dr. El-Ghannam testified that all ObTape degrades and that any polypropylene particles it sheds spark a response by the body's immune system, which leads to inflammation and erosion. There was no suggestion that there was a level of degradation that would not cause those harmful effects.

         We are not persuaded that Dr. El-Ghannam's testimony about "an incubation period" warrants a different result. His testimony was not that the ObTape would not cause inflammation or other harm to the patient during such incubation period. Rather, he testified that the injuries would take a longer period of time to manifest. But it was only a matter of time - a question of when, not whether, the patient would suffer harm from the ObTape. As he opined, in any patient, "degradation at one point would cause the infection, the degradation at one point would cause the erosion, the degradation at one point would cause the failure of the implant." In this case, which is focused on the physiological response to a design defect in a medical device, the dose-response relation is not implicated[11] and there was no abuse of discretion in admitting the testimony.

         We have considered Mentor's remaining evidentiary challenges and conclude that the district court at no point exceeded the bounds of its discretion. Mentor therefore was not entitled to a new trial.

         C. Punitive Damages

         Finally, the parties dispute the propriety of the punitive damages awarded in this case. The jury found that Taylor proved by clear and convincing evidence that punitive damages should be awarded against Mentor; that at the time of Taylor's injuries, Mentor had a specific intent to harm her and did in fact harm her; and that Mentor was motivated solely by unreasonable financial gain and actually knew about both the unreasonable danger of the conduct and the high likelihood of injury resulting from the conduct. It then awarded her $4 million in punitive damages. On Mentor's motion, the district court reduced the punitive damages award to $2 million, concluding that the evidence presented at trial was insufficient for the jury to conclude that Mentor acted with specific intent to harm.

         Mentor argues that the evidence at trial was insufficient to warrant any punitive damage award and Taylor challenges the district court's reduction. We review the propriety of punitive damages de novo. Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1212 (11th Cir. 2010).

         Under Florida law, "[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence." Fla. Stat. § 768.72(2). The statute defines the terms as follows:

"'Intentional misconduct' means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that ...

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