Terri Freeman; Earl Freeman v. Ethicon, Inc.; Johnson & Johnson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRI FREEMAN; EARL FREEMAN,
Plaintiffs-Appellants,
v.
ETHICON, INC.; JOHNSON & JOHNSON,
Defendants-Appellees.
No. 22-56037
D.C. No.
2:20-cv-10661-CBM-SK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted November 13, 2023
Pasadena, California
Before: RAWLINSON, CLIFTON, and HURWITZ, Circuit Judges.
Plaintiffs Terri and Earl Freeman (“the Freemans”) appeal from a judgment
entered after a jury verdict in favor of Ethicon and Johnson & Johnson
(collectively “Ethicon”). The Freemans claim that the jury instructions erroneously
conflated the risks of the Prolift+M device with those posed by other Ethicon
devices not at issue in the case. Because it is unlikely that the outcome would have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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differed under the Freemans’ proposed instructions, we affirm.
Erroneous instructions do not justify overturning a jury verdict if it is “more
probable than not that the jury would have reached the same verdict had it been
properly instructed.” See Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798
(9th Cir. 2017) (citation and quotations omitted). Here, any hypothetical error in
the district court’s instructions was harmless. The court’s final instructions were
almost identical to the language the Freemans suggested in their initial motion for
issue preclusion and again in the joint pretrial conference order, merely changing
the scope from “Defendants’ polypropylene mesh products (and specifically the
Prolift+M)” to “Defendants’ polypropylene mesh products (including the
Prolift+M).” Although Ethicon took advantage of the final instructions in its
closing argument, it could have made the same arguments under the Freemans’
proposal. Given the similarity of both formulations—“and specifically” and
“including”— it is unlikely that the jury would have seen much daylight between
them.
The Freemans appear to have noticed that potential vagueness, which is why
their final proposed instructions referred solely to “Defendants’ Prolift+M.”
However, the district court’s rejection of that proposal did not preclude the
Freemans from arguing that Ethicon’s other products carry some of the enumerated
risks, but that only the Prolift+M features all of them. Indeed, the Freemans

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elicited significant testimony emphasizing the differences between the Prolift+M
and the TVT-O, another Ethicon product, and their closing argument underscored
those differences. Especially given the opaque nature of a general verdict after a
long trial, it does not appear “more probable than not” that the outcome would
have differed under a slightly different instruction.
AFFIRMED.

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