Appeals from the United States District Court for the Middle
District of Georgia D.C. Docket Nos. 4:08-md-02004-CDL,
TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN,
KAPLAN, DISTRICT JUDGE.
Taylor here sues Mentor Worldwide LLC ("Mentor")
and Mentor Corporation 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.
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
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.
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.
begin with an overview of the evidence offered and objections
made at trial to the extent such evidence and objections are
relevant on appeal.
Porosity of ObTape
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,
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." 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.
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
Tendency to Degrade
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
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.
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.
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
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."
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
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.
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.
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.
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.
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.
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.
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."
The Jury Verdict
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
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
jury awarded Taylor $400, 000 in compensatory and $4 million
in punitive damages.
Mentor's Post-Trial Motions
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.
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).
and Taylor each appealed. Mentor argues that it is entitled
(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.
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.
Motion for Judgment as a Matter of Law
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).
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.
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
that the district court did not abuse its discretion in not
striking Dr. Porter's testimony.
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.
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
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.
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. 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." 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.
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
Motion for a New Trial
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
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. 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
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). 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.
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.
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 and there was no abuse of discretion in
admitting the testimony.
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.
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.
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).
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 ...