1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Barbara Heinrich, et al., Case No. 2:20-cv-00166-CDS-MDC
5 Plaintiffs Order Denying the Defendants’ Motion to Apply New Jersey Law 6 v.
7 Ethicon, Inc., et al., [ECF No. 324]
8 Defendants
9 10 On March 4, 2026, the court held a hearing on various motions, including the defendants’ 11 motion to apply New Jersey law to the plaintiffs’ punitive damages (ECF No. 324).1 See Mins., 12 ECF No. 331. At the conclusion of the hearing, I took the defendants’ punitive damages motion 13 under advisement. Having considered the motion and the parties’ arguments, I deny the 14 defendants’ motion. 15 I. Background2 16 The parties are familiar with the background of the case, so I only summarize and 17 address information relevant to resolving the pending motions before the court. 18 On January 6, 2014, the plaintiffs filed a short form complaint seeking punitive damages 19 against defendants Ethicon and Johnson & Johnson.3 See ECF No. 4 at 5; see also ECF No. 70-1 at 20 57–60 (the plaintiffs’ first amended master long form complaint asserts a claim for punitive 21 damages). On January 21, 2020, the parties submitted a joint designation of record for MDL 22 transfers. See ECF No. 70. Therein, the parties designated non-PTO filings from 2:12-MD-2327 23 for transmission to the transferor court. ECF No. 70 at 1. Part of the exhibits included the 24 1 All other motions (ECF Nos. 311, 315, 320, 325) that were pending were resolved on the record. I 25 incorporate by reference the March 4, 2026 hearing transcript. 2 I incorporate by reference the factual background in the court’s order, ECF No. 319 at 1–2. 26 3 The defendants were engaged in the business of placing medical devices into the stream of commerce by designing, manufacturing, testing, training, marketing, promoting, packaging, labeling, and or sell devices, such as pelvic mesh products. ECF No. 70-1 at 2, ¶ 7. 1 defendants’ master answers. Id. Among the defendants’ defenses asserted in their answers was 2 “the provisions of all applicable statutory caps on damages of any sort, including punitive, non- 3 economic or exemplary damages, under the laws of the applicable states.” ECF No. 70-2 at 47; 4 ECF No. 70-3 at 44; ECF No. 70-4 at 48. 5 On April 17, 2020, the court entered an order addressing the motion for summary 6 judgment and acknowledging that the parties agreed that Nevada law applied to the substantive 7 claims. See ECF No. 86 at 5 n.3 (first citing ECF No. 50 at 4; and then citing ECF No. 59 at 1). 8 Over five years later, on May 19, 2025, the court rejected the joint pretrial order, in part 9 because the defendants, for the first time, raised a challenge to which law should apply to the 10 plaintiffs’ demand for punitive damages. In rejecting the pretrial order, I explained that the issue 11 of whether New Jersey law applies to the plaintiffs’ request for punitive damages should be 12 subject to motions practice.4 See ECF No. 297 at 1. Pursuant to that order, the defendants filed 13 this pending motion. See ECF No. 324. 14 II. Discussion 15 The defendants’ motion asks this court to find New Jersey law applies to the plaintiffs’ 16 demand for punitive damages. ECF No. 324; ECF No. 70-1 at 57. The plaintiffs oppose the 17 motion arguing that the defendants have forfeited the right to argue what substantive law 18 applies to the plaintiffs’ cause of action. ECF No. 328 at 1. The plaintiffs further argue that 19 Nevada does not apply separate state’s laws to different issues within a cause of action. Id. 20 Finally, the plaintiffs also argue that Nevada has more significant interest in not applying a 21 statutory cap. Id. at 7. 22 Punitive damages are a type of “traditional relief offered in the courts of law.” See Curtis v. 23 Leother, 415 U.S. 189, 195 (1974). The Supreme Court of Nevada has found that “punitive 24 damages [are] a remedy, not a separate cause of action.” Baker v. Penny Opco, LLC, 2025 U.S. Dist. 25
26 4 Until 2025, the choice of law question for punitive damages was never previously raised by the defendants. 1 LEXIS 251544, at *2 (D. Nev. Nov. 7, 2025) (citation modified); Teva Parenteral Meds., Inc. v. Eighth 2 Jud. Dist. Ct., 481 P.3d 1232, 1242 (Nev. 2021) (punitive damages derive from an underlying cause 3 of action). Further, punitive damages are not awarded as a matter of right to an injured litigant, 4 but are awarded in addition to compensatory damages as a means of punishing the tortfeasor 5 and deterring the tortfeasor and others from engaging in similar conduct. See Coughlin v. Hilton 6 Hotels Corp., 879 F. Supp. 1047, 1050 (D. Nev. 1995). 7 In Nevada, punitive damages are authorized by statute. See Nev. Rev. Stat. § 42.001. 8 Section 42.005 provides that punitive damages may not exceed “[t]hree times the amount of 9 compensatory damages awarded to the plaintiff if the amount of compensatory damages is 10 $100,000 or more.” Id. at § 42.005(1)(a). But the “limitations on the amount” of punitive damages 11 does not apply to an action brought against a “manufacturer, distributor or seller of a defective 12 product.” Id. at § 42.005(2)(a). 13 As a threshold matter, I first address whether the defendants have waived their choice of 14 law argument to apply New Jersey law to punitive damages. The Ninth Circuit has not clearly 15 established that choice of law claims can be waived; rather, it has indicated the contrary. See Gen. 16 Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1505 (9th Cir. 1995) (finding that the defendant 17 did not waive right to application of choice of law provision despite initially failing to assert it 18 and citing other state’s law). Other circuits have split on whether choice of law arguments may 19 be waived. Compare Huber v. Taylor, 469 F.3d 67, 74–75 (3d Cir. 2006) (holding that plaintiffs did 20 not waive choice of law issue on grounds that “we have been reluctant to apply the waiver 21 doctrine when only an issue of law is raised”), with Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211–12 22 (10th Cir. 2001) (finding that party waived choice of law argument by failing to adequately brief 23 it). 24 Although the parties agreed that Nevada law would apply to the substantive aspect of 25 the case (ECF No. 50 at 4; ECF No. 59 at 1), I find that the defendants have not waived a choice 26 of law argument as to punitive damages. Rather, the defendants arguably reserved an argument 1 on choice of law in their generic master answers regarding punitive damages (ECF No. 70-3 at 2 44; ECF No. 70-4 at 48), so I turn to determining the applicable law as it pertains to punitive 3 damages. 4 In determining which state’s substantive law applies in a diversity action, federal courts 5 must apply the forum state’s choice-of-law rules. Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th 6 Cir. 2005) (quoting Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002)). Because this case arises out 7 of diversity jurisdiction (ECF No. 4), I look to Nevada’s conflict of laws to make my 8 determination. Copper Sands Homeowners Ass’n v. Copper Sands Realty, LLC, 2012 U.S. Dist. 44583, at 9 *10 (D. Nev. Mar. 29, 2012). Nevada applies its own law unless there is a conflict of law. See Eb 10 Holdings II Inc. v. Ill. Nat’l Ins. Co., 2026 U.S. Dist. LEXIS 40488, at *16 (D. Nev. Feb. 27, 2026).
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1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Barbara Heinrich, et al., Case No. 2:20-cv-00166-CDS-MDC
5 Plaintiffs Order Denying the Defendants’ Motion to Apply New Jersey Law 6 v.
7 Ethicon, Inc., et al., [ECF No. 324]
8 Defendants
9 10 On March 4, 2026, the court held a hearing on various motions, including the defendants’ 11 motion to apply New Jersey law to the plaintiffs’ punitive damages (ECF No. 324).1 See Mins., 12 ECF No. 331. At the conclusion of the hearing, I took the defendants’ punitive damages motion 13 under advisement. Having considered the motion and the parties’ arguments, I deny the 14 defendants’ motion. 15 I. Background2 16 The parties are familiar with the background of the case, so I only summarize and 17 address information relevant to resolving the pending motions before the court. 18 On January 6, 2014, the plaintiffs filed a short form complaint seeking punitive damages 19 against defendants Ethicon and Johnson & Johnson.3 See ECF No. 4 at 5; see also ECF No. 70-1 at 20 57–60 (the plaintiffs’ first amended master long form complaint asserts a claim for punitive 21 damages). On January 21, 2020, the parties submitted a joint designation of record for MDL 22 transfers. See ECF No. 70. Therein, the parties designated non-PTO filings from 2:12-MD-2327 23 for transmission to the transferor court. ECF No. 70 at 1. Part of the exhibits included the 24 1 All other motions (ECF Nos. 311, 315, 320, 325) that were pending were resolved on the record. I 25 incorporate by reference the March 4, 2026 hearing transcript. 2 I incorporate by reference the factual background in the court’s order, ECF No. 319 at 1–2. 26 3 The defendants were engaged in the business of placing medical devices into the stream of commerce by designing, manufacturing, testing, training, marketing, promoting, packaging, labeling, and or sell devices, such as pelvic mesh products. ECF No. 70-1 at 2, ¶ 7. 1 defendants’ master answers. Id. Among the defendants’ defenses asserted in their answers was 2 “the provisions of all applicable statutory caps on damages of any sort, including punitive, non- 3 economic or exemplary damages, under the laws of the applicable states.” ECF No. 70-2 at 47; 4 ECF No. 70-3 at 44; ECF No. 70-4 at 48. 5 On April 17, 2020, the court entered an order addressing the motion for summary 6 judgment and acknowledging that the parties agreed that Nevada law applied to the substantive 7 claims. See ECF No. 86 at 5 n.3 (first citing ECF No. 50 at 4; and then citing ECF No. 59 at 1). 8 Over five years later, on May 19, 2025, the court rejected the joint pretrial order, in part 9 because the defendants, for the first time, raised a challenge to which law should apply to the 10 plaintiffs’ demand for punitive damages. In rejecting the pretrial order, I explained that the issue 11 of whether New Jersey law applies to the plaintiffs’ request for punitive damages should be 12 subject to motions practice.4 See ECF No. 297 at 1. Pursuant to that order, the defendants filed 13 this pending motion. See ECF No. 324. 14 II. Discussion 15 The defendants’ motion asks this court to find New Jersey law applies to the plaintiffs’ 16 demand for punitive damages. ECF No. 324; ECF No. 70-1 at 57. The plaintiffs oppose the 17 motion arguing that the defendants have forfeited the right to argue what substantive law 18 applies to the plaintiffs’ cause of action. ECF No. 328 at 1. The plaintiffs further argue that 19 Nevada does not apply separate state’s laws to different issues within a cause of action. Id. 20 Finally, the plaintiffs also argue that Nevada has more significant interest in not applying a 21 statutory cap. Id. at 7. 22 Punitive damages are a type of “traditional relief offered in the courts of law.” See Curtis v. 23 Leother, 415 U.S. 189, 195 (1974). The Supreme Court of Nevada has found that “punitive 24 damages [are] a remedy, not a separate cause of action.” Baker v. Penny Opco, LLC, 2025 U.S. Dist. 25
26 4 Until 2025, the choice of law question for punitive damages was never previously raised by the defendants. 1 LEXIS 251544, at *2 (D. Nev. Nov. 7, 2025) (citation modified); Teva Parenteral Meds., Inc. v. Eighth 2 Jud. Dist. Ct., 481 P.3d 1232, 1242 (Nev. 2021) (punitive damages derive from an underlying cause 3 of action). Further, punitive damages are not awarded as a matter of right to an injured litigant, 4 but are awarded in addition to compensatory damages as a means of punishing the tortfeasor 5 and deterring the tortfeasor and others from engaging in similar conduct. See Coughlin v. Hilton 6 Hotels Corp., 879 F. Supp. 1047, 1050 (D. Nev. 1995). 7 In Nevada, punitive damages are authorized by statute. See Nev. Rev. Stat. § 42.001. 8 Section 42.005 provides that punitive damages may not exceed “[t]hree times the amount of 9 compensatory damages awarded to the plaintiff if the amount of compensatory damages is 10 $100,000 or more.” Id. at § 42.005(1)(a). But the “limitations on the amount” of punitive damages 11 does not apply to an action brought against a “manufacturer, distributor or seller of a defective 12 product.” Id. at § 42.005(2)(a). 13 As a threshold matter, I first address whether the defendants have waived their choice of 14 law argument to apply New Jersey law to punitive damages. The Ninth Circuit has not clearly 15 established that choice of law claims can be waived; rather, it has indicated the contrary. See Gen. 16 Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1505 (9th Cir. 1995) (finding that the defendant 17 did not waive right to application of choice of law provision despite initially failing to assert it 18 and citing other state’s law). Other circuits have split on whether choice of law arguments may 19 be waived. Compare Huber v. Taylor, 469 F.3d 67, 74–75 (3d Cir. 2006) (holding that plaintiffs did 20 not waive choice of law issue on grounds that “we have been reluctant to apply the waiver 21 doctrine when only an issue of law is raised”), with Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211–12 22 (10th Cir. 2001) (finding that party waived choice of law argument by failing to adequately brief 23 it). 24 Although the parties agreed that Nevada law would apply to the substantive aspect of 25 the case (ECF No. 50 at 4; ECF No. 59 at 1), I find that the defendants have not waived a choice 26 of law argument as to punitive damages. Rather, the defendants arguably reserved an argument 1 on choice of law in their generic master answers regarding punitive damages (ECF No. 70-3 at 2 44; ECF No. 70-4 at 48), so I turn to determining the applicable law as it pertains to punitive 3 damages. 4 In determining which state’s substantive law applies in a diversity action, federal courts 5 must apply the forum state’s choice-of-law rules. Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th 6 Cir. 2005) (quoting Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002)). Because this case arises out 7 of diversity jurisdiction (ECF No. 4), I look to Nevada’s conflict of laws to make my 8 determination. Copper Sands Homeowners Ass’n v. Copper Sands Realty, LLC, 2012 U.S. Dist. 44583, at 9 *10 (D. Nev. Mar. 29, 2012). Nevada applies its own law unless there is a conflict of law. See Eb 10 Holdings II Inc. v. Ill. Nat’l Ins. Co., 2026 U.S. Dist. LEXIS 40488, at *16 (D. Nev. Feb. 27, 2026). A 11 conflict of law exists when two or more states have a legitimate interest in a particular set of 12 facts in litigation and the laws of those states differ or conflict. Id. 13 It is undisputed that there is a conflict between Nevada and New Jersey law as it 14 pertains to punitive damages. See ECF No. 324 at 3; ECF No. 328 at 21. Nevada law does not cap 15 punitive damages against manufacturers, distributors, and sellers. See Nev. Rev. Stat. § 16 42.005(2)(a). But New Jersey does. See N.J. Stat. Ann. § 2A:15–5:12; id. at § 2A:15–5.14. 17 The defendants contend that New Jersey law controls the plaintiffs’ request for punitive 18 damages because the relevant conduct is the corporate decision-making at the defendants’ 19 headquarters in New Jersey. ECF No. 324 at 1. The defendants further argue that New Jersey has 20 the most significant relationship with the plaintiffs’ request for punitive damages. Id. at 6. They 21 further assert that the following factors weigh in favor of finding that New Jersey law applies: 22 the place where the conduct causing the injury occurred; the defendants’ domicile; and the place 23 where the relationship for punitive damage purposes took place. Id. The defendants argue that 24 there is only one connection to Nevada, and that is the place where the injury occurred. Id. 25 26 1 In opposition, the plaintiffs assert: (1) Nevada law classifies punitive damages as a 2 remedy, not a separate cause of action; and (2) even if splitting choice of law was allowed, 3 Nevada’s interest in punishing and deterring conduct affecting Nevada residents outweighs 4 New Jersey’s interest in protecting corporate entities. ECF No. 328 at 1–2. Further, the plaintiffs 5 argue that because Nevada law applies to the plaintiffs’ claims, the court should not apply a 6 different state’s law to individual issues within the case. Id. at 4. The plaintiffs further argue that 7 Nevada has a more significant relationship, and § 146 of the Restatement requires the court to 8 apply the law of the state where the injury took place. Id. at 8. 9 Punitive damages are designed to punish the defendant, not to compensate the plaintiff, 10 so the choice-of-law inquiry for punitive damages provisions is necessarily “defendant-focused.” 11 See Golden v. Wyeth, 2013 WL 4500879, at *3 (E.D.N.Y. Aug. 20, 2013). Further, because the 12 Supreme Court of Nevada has not addressed whether dépeçage should be adopted in this state, 13 this court must predict whether it would adopt it if this case were before that court. See Sivil v. 14 Country Mut. Ins. Co., 619 F. Supp. 3d 1072, 1076 (D. Nev. 2022) (citing Lewis v. Tel. Emps. Credit Union, 15 87 F.3d 1537, 1545 (9th Cir. 1996); Gomez v. Am. Med. Sys., 2021 U.S. Dist. LEXIS 273184, at *3 (D. 16 Ariz. June 17, 2021) (explaining claims involving punitive damages lead to dépeçage). As such, I 17 find that in this particular case, the court would adopt dépeçage for punitive damages. 18 For tort actions, Nevada has adopted the Restatement (Second) of Conflict of Law’s 19 most-significant-relationship test (§ 145) to determine the choice of law, unless a more specific 20 section of the Restatement applies to a particular tort. Gen. Motors Corp. v. Eighth Jud. Dist. Ct., 134 21 P.3d 111, 116 (Nev. 2006). The state with the most significant relationship is determined by 22 looking to (1) the place where the injury occurred; (2) the place where the conduct causing the 23 injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of 24 business of the parties; and (4) the place where the relationship, if any, between the parties is 25 centered. Restatement (Second) of Conflict of Laws § 145 (1971). While the court generally will 26 look to the place where the injury took place, the court shifts its focus to § 6 if there is “some 1 evidence of a relationship between the non-forum state, the occurrence giving rise to the claims 2 for relief, and the parties.” Gen. Motors Corp., 134 P.3d at 117. Section 6 of the Restatement injects 3 flexibility into the choice-of-law analysis. Id. at 117. Courts generally consider the states’ policies, 4 the parties’ expectations, and how easily the states’ laws could be applied. See id. (citing 5 Restatement (Second) of Conflict of Laws § 6 (1971)). 6 I first consider the § 145 factors. Here, the plaintiffs’ injury occurred in Nevada and the 7 defendants are domiciled in New Jersey. As such, factor one favors the plaintiffs whereas factor 8 three favors the defendants. See Restatement (Second) of Conflict of Laws § 145(2)(a), (c). The 9 conduct causing the injury factor (id. at § 145 (b)) is neutral given the plaintiffs’ allegations. 10 Those allegations include: 11 • that the defendants sold their products to the plaintiffs’ healthcare providers in Nevada 12 without adequate testing to ensure the products were reasonably safe, ECF No. 70-1 at 13 57, ¶ 234; see also ECF No. 328-10 at 16, 19, 42; 14 • that the defendants knew or should have known that the pelvic mesh products were 15 inherently dangerous with respect to risks of pain and suffering, remedial surgeries and 16 treatments, id. at ¶ 236; and 17 • that the defendants intentionally misstated and misrepresented data to providers in 18 Nevada to minimize the risk of injuries. Id. at ¶ 241; see also ECF No. 328-10 at 16, 19, 42. 19 Given these allegations, the defendants’ arguments (ECF Nos. 324, 329) that all conduct 20 giving rise to punitive damages is tied to New Jersey is not wholly persuasive. See ECF No. 70-1 21 at ¶¶ 3–4, 7–8, 80–81, 248. For instance, Thomas Storozuk was a sales representative hired by 22 Dr. Hsieh, and Storozuk marketed the TVT Secur in Nevada using patient brochures and sales 23 brochures, in order to educate the physicians. See Sep. 19, 2018 dep., Pl.’s Ex. 10, ECF No. 328-10 24 at 16, 19, 42. Storozuk educated physicians about Ethicon’s products and demonstrated the 25 products Ethicon offered. Id. at 43. Moreover, Storozuk was the only representative for the 26 Ethicon gynecologic products (which included TVT Secur). Id. at 25. Further, Dr. Hsieh 1 provided in his deposition that he received training from Ethicon on TVT Secur. May 30, 2018 2 dep., Pl.’s Ex. 7, ECF No. 328-7 at 24. Thus, while undoubtedly some of the defendants’ conduct 3 occurred in New Jersey, it was not exclusively in that state. 4 Finally, I find that the last factor favors the plaintiffs because the relationship between 5 the parties is centered in Nevada. Specifically, the mesh was marketed and ultimately sold to 6 providers (including Heinrich) in Nevada, Dr. Hsieh implanted the TVT Secur in Nevada (Pl.’s 7 Ex. 7, ECF No. 328-7 at 7), and the consultation related to the surgery occurred in Nevada, not 8 New Jersey (id. at 34–35). Heinrich was counseled as to risks, benefits, options, and alternatives 9 in treating her stress urinary incontinence during her treatment at Dr. Hsieh’s clinic. Id. at 35, 41. 10 Further, the consent indicating possible risks from the surgery was signed on January 18, 2008 in 11 Nevada and the form indicated that the surgery was recommended by Dr. Hsieh. Id. at 43–44. Dr. 12 Hsieh further indicated that in January of 2008, he was aware of several risks of the surgery, but 13 was unaware of the risks concerning scarring, shrinkage of tissue. Id. at 56, 58. And finally, the 14 mesh implantation surgery was performed in Nevada. ECF No. 4 at 4, ¶ 11. This information 15 weighs in favor of finding that the relationship between the plaintiffs and the defendants are 16 centered in Nevada, not New Jersey. 17 While the harm at the heart of this litigation took place in Nevada, I may consider 18 factors under § 6 if the defendants can show that a relationship exists between a non-forum 19 state. The defendants attempt to argue that § 6 factors are satisfied by asserting that New Jersey 20 enacted its Products Liability Act and Punitive Damages Act to encourage development and sale 21 of a product while limiting punitive damages. The defendants also argue that there have been 22 numerous Ethicon pelvic-mesh cases that have held that New Jersey has a significant 23 relationship to punitive damages. ECF No. 324 at 10; ECF No. 329 at 10. But those decisions are 24 not binding on this court. Because I find that several arguments raised by the defendants are 25 conclusive at best, and the most-significant-relationship test weighs in favor of the plaintiffs, I 26 find Nevada law governs the demand for punitive damages. Conclusion 2 IT IS HEREBY ORDERED that defendants’ motion to apply New Jersey law to the 3]| plaintiffs’ request for punitive damages [ECF No. 324] is DENIED. 4 Dated: March 24, 2026 /, / SLL. é hhegg — 7 isd States District Judge / 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26