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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: DAVOL, INC./C.R. BARD, 

INC., POLYPROPYLENE HERNIA 

MESH PRODUCTS LIABILITY 

LITIGATION

This document relates to: 

Milanesi, et al. v. C.R. Bard, Inc., et al.

Case No. 2:18-cv-01320 

 Case No. 2:18-md-2846

 JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

DISPOSITIVE MOTIONS ORDER No. 6 

Before the Court is Plaintiffs Antonio Milanesi and Alicia Morz de Milanesi’s Motion for 

New Trial on Damages, or in the Alternative, Motion for New Trial under Federal Rule of Civil 

Procedure 59. (ECF No. 385.) Plaintiffs argue that they are entitled to a new trial because the 

Court improperly instructed the jury as to the burden of proof for the doctrine of avoidable 

consequences, which may have affected the jury’s damages award. For the reasons stated below, 

Plaintiffs’ Motion is DENIED. 

I. Background1

Plaintiffs’ case is the second bellwether trial selected from thousands of cases in this 

multidistrict litigation (“MDL”) against Defendants. The Judicial Panel on Multidistrict Litigation 

described the cases in this MDL as “shar[ing] common factual questions arising out of allegations 

that defects in defendants’ polypropylene hernia mesh products can lead to complications when 

implanted in patients, including adhesions, damage to organs, inflammatory and allergic responses, 

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 For a more complete factual background, the reader is directed to the Court’s summary 

judgment opinion and order in this case Milanesi v. C.R. Bard, Case No. 2:18-cv-01320. (ECF 

No. 167.) All docket citations are to the Milanesi case, 2:18-cv-1320, unless otherwise noted. 

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foreign body rejection, migration of the mesh, and infections.” (No. 2:18-md-02846, ECF No. 1 

at PageID #1–2.) 

Plaintiffs brought this action to recover for injuries sustained as a result of the implantation 

of the Ventralex Large Hernia Patch, alleging that Defendants knew of the risks presented by the 

device but marketed and sold it despite these risks and without appropriate warnings. After 

summary judgment, the following claims remained for trial: strict liability design defect, negligent 

design defect, negligent failure to warn, negligent misrepresentation, fraudulent misrepresentation, 

loss of consortium, and punitive damages. Trial commenced on March 21, 2022, and lasted for 

approximately four weeks. On April 15, 2022, the jury returned a verdict for Defendants on 

Plaintiffs’ claims of strict liability design defect, negligent failure to warn, negligent 

misrepresentation, and fraudulent misrepresentation. The jury returned a verdict for Plaintiffs on 

the claims of negligent design defect, with an award of $250,000, and loss of consortium, with an 

award of $5,000. The jury did not award punitive damages.

II. Legal Standard

A federal court, hearing a case on the basis of diversity jurisdiction, reviews a motion for 

a new trial based on a federal standard. Conte v. Gen. Houseware Corp., 215 F.3d 628, 637 (6th 

Cir. 2000). Under Rule 59 of the Federal Rules of Civil Procedure, a new trial may be granted in 

a jury trial for “any reason for which a new trial has heretofore been granted in an action at law in 

federal court.” Fed. R. Civ. P. 59(a)(1)(A). Granting a new trial is within the sound discretion of 

the trial court and an abuse of discretion occurs only upon “‘a definite and firm conviction that the 

trial court committed a clear error of judgment.’” CFE Racing Prod., Inc. v. BMF Wheels, Inc., 

793 F.3d 571, 584 (6th Cir. 2015) (quoting Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 

398, 405 (6th Cir. 2006)).

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A court may grant a new trial solely on damages if the issues of liability and damages are 

not “so interwoven as to be inseparable.” Devine v. Patteson, 242 F.2d 828, 833 (6th Cir. 1957). 

However, “[a] trial court may not grant a new trial on the ground of insufficient damages unless 

the jury verdict is one that could not reasonably have been reached.” Acuity Mut. Ins. Co. v. Frye, 

471 F. App’x 431, 435 (6th Cir. 2012) (citing Walker v. Bain, 257 F.3d 660, 674 (6th Cir. 2001)). 

“The remedy of a new trial for inadequate damages is appropriate only where the evidence 

indicates that the jury awarded damages in an amount substantially less than unquestionably 

proved by the plaintiff’s uncontradicted and undisputed evidence.” Walker, 257 F.3d at 674 (citing 

Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir.1996)).

III. Analysis

Plaintiffs claim that they are entitled to a new trial on damages because Defendants 

“improperly convinced this Court that the avoidable consequences doctrine is not an affirmative 

defense,” and therefore the Court did not properly instruct the jury that Defendants had the burden 

of proof regarding the avoidable consequences doctrine. (ECF No. 385 at PageID #19296.) 

Plaintiffs claim that because the jury was not properly instructed, the damages award could have 

been affected and a new trial is warranted. (Id. at PageID #19303.)

Both parties cite to System Components Corp. v. Florida Dept. of Transportation in support 

of their positions. In System Components, the Florida Supreme Court explained the doctrine of 

avoidable consequences as follows:

The doctrine of avoidable consequences, which is also somewhat 

inaccurately identified as the “duty to mitigate” damages, commonly applies in 

contract and tort actions. See generally 17 Fla. Jur.2d, Damages, §§ 103–04 (2004). 

There is no actual “duty to mitigate,” because the injured party is not compelled to 

undertake any ameliorative efforts. The doctrine simply “prevents a party from 

recovering those damages inflicted by a wrongdoer that the injured party could 

have reasonably avoided.” The Florida Bar, Florida Civil Practice Damages § 

2.43, at 2–30 (6th ed.2005) (emphasis supplied) (citing Sharick v. SE. Univ. of 

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Health Scis., Inc., 780 So.2d 136 (Fla. 3d DCA 2000); Graphic Assocs., Inc. v. 

Riviana Rest. Corp., 461 So.2d 1011 (Fla. 4th DCA 1984)). The doctrine does not 

permit damage reduction based on what “could have been avoided” through 

Herculean efforts. See, e.g., Thompson v. Fla. Drum Co., 651 So.2d 180, 182 (Fla. 

1st DCA 1995) (“Extraordinary efforts on the part of a plaintiff to mitigate are not 

required.”), approved, 668 So.2d 192 (Fla.1996). Rather, the injured party is only 

accountable for those hypothetical ameliorative actions that could have been 

accomplished through “ordinary and reasonable care,” without requiring undue 

effort or expense. Graphic Assocs., 461 So.2d at 1014 (the doctrine “prevents a 

party from recovering those damages inflicted by a wrongdoer which the injured 

party ‘could have avoided without undue risk, burden, or humiliation.’ ” (emphasis 

supplied) (quoting Restatement (Second) of Contracts § 305(1) (1979))); Royal 

Trust Bank of Orlando v. All Fla. Fleets, Inc., 431 So.2d 1043, 1045 (Fla. 5th DCA 

1983) (substantially similar).

Sys. Components, 14 So. 3d 967, 982 (Fla. 2009). According to Plaintiffs, the language in System 

Components and the cases following it support Plaintiffs’ position that the doctrine of avoidable 

consequences is an affirmative defense, and the Court erred in not instructing the jury that 

Defendants had the burden of proof. (ECF No. 385 at PageID #19299.) The Court ultimately 

instructed the jury as follows:

Instruction No. 25

DEFENSE ISSUE ON AVOIDANCE OF CONSEQUENCES

Defendants claim that Mr. Milanesi could have reduced his future damages 

by undergoing an additional surgery to repair his recurrent hernias, and that such 

refusal was unreasonable. There is no actual duty to mitigate or reduce his damages

because Mr. Milanesi is not required to undertake any corrective efforts. The law

simply prevents Mr. Milanesi from recovering those damages inflicted by 

Defendants that Mr. Milanesi could have reasonably avoided. The law does not 

permit damage reduction based on what could have been avoided through 

extraordinary efforts. Rather, Mr. Milanesi is only accountable for corrective

actions that could have been accomplished through ordinary and reasonable care, 

without requiring undue effort or expense.

Milanesi v. C.R. Bard, Inc. et al., S.D. Ohio Case No. 2:18-cv-1320, Final Jury Instruction No. 25. 

In response, Defendants claim that Plaintiffs “expressly forfeited their instructional error 

claim” as to Jury Instruction No. 25 because they did not object to the final instruction at the charge 

conference or at any point thereafter. (ECF No. 388 at PageID #19463.) According to Rule 51 of 

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the Federal Rules of Civil Procedure, “[n]o party may assign as error the giving or the failure to 

give an instruction unless he objects thereto before the jury retires to consider its verdict, stating 

distinctly the matter objected to and the grounds of the objection.” Woodbridge v. Dahlberg, 954 

F.2d 1231, 1235 (6th Cir. 1992) (internal citations omitted). Defendants concede that prior to the 

Court’s charge conference Plaintiffs submitted a proposed instruction that would have 

characterized avoidable consequences as an affirmative defense, and that the burden of proof 

question was debated during the charge conference. (Id. at PageID #19465.) However, Defendants 

point out that after the Court listened to the parties’ positions on Jury Instruction No. 25 and 

modified the instruction in response to the parties’ concerns, Plaintiffs did not object to the final 

instruction. (Id. at PageID #19466; ECF No. 407 at PageID #22854–55.) At the charge 

conference, the Court reviewed the authorities cited by Plaintiffs and noted that those authorities 

did not address which party has the burden of proof for the doctrine of avoidable consequences. 

(Id. at PageID #22852 (“I don’t see anything in here that says whose burden it is.”).) 

Given the lack of on-point authority, the Court proposed a compromise of simply pulling

language directly from the Florida Supreme Court’s decision in System Components, which 

Plaintiffs cited as the authority for their proposed instruction on avoidance of consequences. (ECF 

No. 366 at PageID #18970; ECF No. 407 at PageID #22850–52.) The Court read aloud the 

language from System Components and the parties offered suggestions for how to best modify the 

language in crafting Instruction No. 25. (Id.) The parties agreed on slight modifications such as 

changing the word “herculean” to “extraordinary” and changing “ameliorative” to “corrective.” 

(Id. at PageID #22853–54.) Neither party raised an objection to the final instruction. (Id. at 

PageID # 22855.) Plaintiffs’ counsel did state that she “th[ought] we need[ed] to mention that if 

the refusal or if not mitigating was reasonable.” (Id.) However, the Court addressed that concern 

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by pointing out that reasonableness was already mentioned several times in the instruction. (Id.) 

In fact, the instruction used the word “reasonable” once, “unreasonable” once, “reasonably” once, 

and also mentioned that the law did not permit a reduction in damages based on what could have 

been avoided through “extraordinary efforts.” Milanesi v. C.R. Bard, Inc. et al., S.D. Ohio Case 

No. 2:18-cv-1320, Final Jury Instruction No. 25. After the Court addressed the concern about 

reasonableness, Plaintiffs’ counsel mentioned no remaining objection or concerns with Instruction 

No. 25.

In response, Plaintiffs cite to Gradsky v. Sperry Rand Corp. in support of their position that 

a formal objection is not required if “it is clear that the judge was made aware of the possible error 

in or omission from the instructions.” Gradsky, 489 F.2d 502, 503 (6th Cir. 1973). However, as 

noted in Woodbridge v. Dahlberg, when the Sixth Circuit’s “decisions subsequent to Gradsky are 

also considered, a more complete statement of a party’s obligation under Rule 51 emerges.” 

Woodbridge, 954 F.2d at 1235. In Woodbridge, “[t]he trial court discussed the jury charge with 

counsel at some length prior to closing argument.” Id. The court heard objections from both 

parties. Id. In response to the objections, the trial court modified the instruction and “counsel did 

not mention the omission of the language about which appellants [] complain[ed on appeal].” Id.

at 1236. The Sixth Circuit reasoned as follows:

Considering the entire discussion between the trial court and the attorneys 

in this case concerning the jury instructions, the court finds that the trial court was 

not made aware of the omission from the instructions. The trial court modified 

the supervisory liability instruction in several respects to accommodate 

appellants’ concerns. Changes in the instructions were made before the court 

read the instructions to the jury and after their reading. The supervisory 

liability instruction itself was changed at appellants’ request after the reading of the 

instructions. Appellants’ counsel specifically advised the court that there were no 

other objections to the instructions, without mentioning the requested instructions 

submitted earlier. The court’s reasonable conclusion would have been that 

appellants were satisfied with the instruction ultimately given. It was not made 

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aware that an objection remained.

The situation in Gradsky was not like that presented here. In Gradsky there 

was a proposed instruction which the trial court refused to give and objections to 

the opposing party’s requested instruction. Although there were several pre-charge 

conferences, this court did not find any of the specific discussion during those 

conferences sufficiently pertinent to its decision to mention the content of the 

conferences in its opinion. Here, where the trial court made every effort to draft 

an instruction acceptable to appellants and incorporated appellants’

requested changes into the instruction, the content of the discussion is 

extremely important. Under the circumstances of this case appellants were 

required to let the trial court know that the redrafted charge was still 

unacceptable. Their failure to do so is a failure to comply with Rule 51's 

requirement that they object before the jury begins deliberations, “stating distinctly 

the matter objected to and the grounds of the objection.”

This result is entirely consistent with this court’s most recent decisions 

relating to the preservation of a claimed error in jury instructions for appellate 

review. In both Murphy v. Owens–Illinois, Inc., 779 F.2d 340, 345–46 (6th 

Cir.1985), and Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir.1985), this court 

ruled that a party had not preserved a claim of error in the jury instruction for 

appellate review under circumstances somewhat similar to those here.

In Murphy counsel excepted to a jury instruction at a pre-charge conference, 

at which many issues relating to the instructions were discussed, saying that the 

instruction did not apply to the case on trial. The trial judge then gave his reasons 

for including the instruction. No further discussion about this part of the 

charge occurred. Counsel did not object to this part of the charge when the lawyers 

were called to the bench after the instructions were read. This court held that the 

issue concerning the charge was not preserved for appellate review and, 

citing Dunn v. St. Louis–San Francisco Ry. Co., 370 F.2d 681, 684 (10th Cir.1966), 

noted that “[t]he objections should be made not only before the jury retires, but 

after the charge is given.” 779 F.2d at 346.

In Roberts this court rejected a party’s argument that he preserved a claimed 

error in the jury instruction for appellate review by “implicitly” objecting through 

offering a different instruction. 773 F.2d at 723. Without citing Gradsky, the court 

acknowledged that Rule 51 could be satisfied by less than formal objection. Formal 

objection is not required, however, “ ‘only if it is clear that the judge was made 

aware of the possible error in or omission from the instructions.’

” Id. (citing Transcontinental Leasing, Inc. v. Michigan Nat’l Bank, 738 F.2d 163 

(6th Cir.1984)).

Id. at 1236–37 (emphases added). Plaintiffs’ reliance on Gradsky ignores highly relevant

subsequent caselaw clarifying a party’s obligation to object to a jury instruction. As in 

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Woodbridge, this Court “made every effort to draft an instruction acceptable to [Plaintiffs]” and 

“[u]nder the circumstances of this case [Plaintiffs] were required to let the trial court know that the 

redrafted charge was still unacceptable.” Woodbridge, 954 F.2d at 1236. And as to Plaintiffs’ 

counsel’s request for language about reasonableness, the Court “gave [its] reasons for” not adding 

an additional reference to reasonableness and “[n]o further discussion about this part of the charge 

occurred.” Id. (citing Murphy, 779 F.2d 340, 345–46). Plaintiffs’ reliance on Van Huss v. Shoffner

is also misplaced. In Van Huss, the Sixth Circuit addressed a party’s failure to formally re-notice 

their objection after the charge was read to the jury. Van Huss v. Shoffner, 81 F. App’x 17, 22 (6th 

Cir. 2003). However, unlike in this case, in Van Huss the plaintiffs did formally object to the 

instructions prior to the charge being read to the jury. Id. at 19.

In addition to the Plaintiffs’ failure to object to the challenged instruction, the Court was 

not, as Plaintiffs repeatedly assert, “incorrectly convince[ed] . . . that the Doctrine of Avoidable 

Consequences put no burden on Defendants.” (ECF No. 391 at PageID #19624.) Rather, in the 

absence of on-point authority or a specific Florida standard jury instruction, the Court elected to 

use language directly from a Florida Supreme Court opinion, the same opinion which Plaintiffs 

cited in their proposed instruction. (ECF No. 366 at PageID #18970.) In support of their Motion, 

Plaintiffs point to a Florida standard jury instruction that instructs that a defendant bears the burden 

of proof in relation to the doctrine of avoidable consequences. (ECF No. 385 at PageID #19300; 

Fla. Std. Jury Instr. (Contract & Business) 504.9.) However, as Plaintiffs note, the model 

instruction applies to contract and business claims. (Id.) There is no corresponding instruction for 

products liability claims. The instruction’s presence in the contract and business standard jury 

instructions shows that the Florida Supreme Court Standard Jury Instructions Committees could 

have included a corresponding instruction in the civil standard instructions, but they did not do so. 

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In the absence of an on-point standard instruction, rather than crafting its own instruction from 

scratch, the Court elected to use language directly from the Florida Supreme Court’s decision in

System Components in order to get the clearest and most accurate application of Florida law. The 

Court finds that Plaintiffs’ arguments are without merit, and the jury’s award of damages is not 

“substantially less than unquestionably proved by the plaintiff’s uncontradicted and undisputed 

evidence.” Walker, 257 F.3d at 674. 

IV. Conclusion

For the reasons set forth above, Plaintiffs’ Motion for New Trial on Damages, or in the 

Alternative, Motion for New Trial (ECF No. 385) is DENIED. 

IT IS SO ORDERED.

7/11/2022 s/Edmund A. Sargus, Jr. 

DATE EDMUND A. SARGUS, JR.

 UNITED STATES DISTRICT JUDGE 

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