Monday, November 28, 2016

Unexpected Comeuppance for Jerky Trial Behavior

Bigler-Engler v. Breg, Inc. No D063556 (D4d1 as modified on rehearing** Jan. 6, 2017)

This is a really loooonnnng opinion arising from an appeal of a products liability trial. Defendants sold, marketed, and prescribed a cold therapy device, But as the court explains
unlike normal cold therapy remedies like an icepack or “a bag of frozen peas”—this device managed to give plaintiff some kind of super awful infection due to constant application of cold. Defendants were, it appears, kind of a motley crew as far as the medical device industry goes and they got tagged with big-time damages, including $5 million in non-economic generals, plus punitives.

The court declines to publish the bulk of its 107-page opinion. But it does publish as to alleged misconduct by Plaintiff’’s trial counsel, excessive damages, sufficiency of the evidence on two claims, an instruction issue, and issues about the impact of MICRA and Prop. 51 on damages. We’ll touch briefly on the first two and leave it at that.

On the first i
ssue, it seems like Plaintiff’s lawyer’s behavior was pretty obnoxious during trial. He made bad jokes at the expense of defense counsel, he made a bunch of stupid speaking objections, he persisted in pushing to get evidence in after objections were sustained, and he ignored the limits set by a few orders granting motions in limine. The judge repeatedly admonished him for this stuff, often in front of the jury. He also—in both closing argument and opening statement—told the jury that he wasn’t allowed to show them all the evidence, and suggested that what they didn’t see was great. But defendant didn’t object to this last point. Overall the court decides that the trial court didn’t err in denying a motion for new trial on liability based on this misconduct. No doubt, there was misconduct. But—setting aside the stuff that didn’t draw objections—there wasn’t a clear case of prejudice meriting reversal. The liability evidence was strong and the court’s repeated admonishments and corrective jury instructions likely cured any prejudice.


But chickens sometimes come home to roost. The jury awarded a lot of non-economic damages. For past damages, more than Plaintiff asked for. The court finds the awards weren’t supported by record. Indeed, it suggests that Plaintiff’s counsel’s bad behavior might have inflamed the jury and led them to inappropriately punish. So the court issues an appellate remittitur—plaintiff can chose between the amount the court finds supportable and a new damages trial.


Same goes for the punitives. The court doesn’t need to get to the issue of whether they were constitutionally suspect, because the evidence didn’t support the award under the substantive California standard. The award would tax the defendant’s ability to pay. The conduct, while stupid and a bit corrupt, doesn’t appear to have included any intent to injure. And at the end of the day, plaintiff’s injuries, while unpleasant, didn’t debilitate her is some awful ongoing way. So appellate remittitur on punitives too.


Reversed in part.


**The court granted rehearing and reversed part if its prior decision dealing with the interplay between MICRA and Prop. 51.

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