Bigler-Engler v. Breg, Inc.
D063556
| Cal. Ct. App. | Oct 28, 2016Background
- Whitney Engler was prescribed a Breg Polar Care 500 cold-therapy device by Dr. David Chao and rented it from Oasis MSO; after continuous use post‑op she developed severe nonfreezing cold injury (NFCI), necrosis, multiple surgeries, scarring and ongoing minor limitations.
- Breg manufactured the Polar Care 500; evidence showed prior incident reports (including a prior patient Warner) and internal studies raising safety concerns; device labeling had been updated but older units retained earlier warnings.
- At an eight‑week jury trial Engler recovered on most claims: compensatory damages $5,196,220.38 (allocated 50% Chao, 10% Oasis, 40% Breg), and punitive damages $500,000 (Chao) and $7,000,000 (Breg).
- Defendants appealed on numerous grounds (evidentiary rulings, counsel misconduct, damages excess, instruction errors, applicability of MICRA and Prop 51, sufficiency of evidence for several torts).
- Court of Appeal: affirmed in part; reversed in part — reversed intentional concealment verdict against Breg and Oasis strict products‑liability verdicts; remitted noneconomic damages to $1,300,000 and punitive damages against Chao to $150,000 (subject to plaintiff acceptance), otherwise ordered retrial on damages issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of 139 prior incident reports | Reports show Breg notice and support experts' opinions | Admission lacked court gatekeeping; prejudicial mass evidence | Breg invited the procedure by stipulation; no reversible error as to use; limited admission held within discretion |
| Counsel misconduct (Plaintiff's counsel) | Misconduct did not affect verdict | Misconduct prejudiced jury and warrants new trial | Misconduct occurred but appellate review found no prejudice to verdict; new trial denied |
| Excessiveness of noneconomic and punitive damages | Award reflects plaintiff's pain, scarring, future surgeries | Awards excessive, motivated by passion/prejudice, and punitive disproportional to net worth | Noneconomic damages remitted to $1,300,000; punitive against Chao remitted to $150,000 (plaintiff may accept or face retrial) |
| Intentional concealment claim against manufacturer (Breg) | Manufacturer concealed safety info; duty to warn/public | No transactional relationship with plaintiff; no duty to disclose to patient -> fraud verdict unsupported | Reversed: no duty to disclose to individual patient absent transaction/relationship; judgment for Breg entered |
| Medical‑provider strict products‑liability (Oasis) | Oasis as distributor/retailer can be strictly liable | Medical‑provider exception shields Oasis from strict products liability | Reversed strict liability claims against Oasis; medical‑provider exception applies to non‑implantable devices used as part of treatment |
| Learned intermediary doctrine (Breg) | Manufacturer can satisfy warning duty by warning prescribers | Learned intermediary limits duty to warn to physicians for prescription/implantables | Doctrine rejected for patient‑operated devices like Polar Care 500; duty runs to patient and physician |
| Application of MICRA and Proposition 51 | MICRA and Prop 51 may limit awards | Defendants seek MICRA cap and proportionate shares under Prop 51 | MICRA ($250,000 cap) applies to professional‑negligence causes; intentional fraud claim not MICRA‑capped; Prop 51 apportions noneconomic liability by fault (applies across negligence/strict liability) |
Key Cases Cited
- Orthopedic Systems, Inc. v. Schlein, 202 Cal.App.4th 529 (2011) (appellate facts stated in light most favorable to judgment)
- Ault v. International Harvester Co., 13 Cal.3d 113 (1974) (admissibility of other accidents requires similarity)
- Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112 (1985) (trial court gatekeeping for other‑accidents evidence)
- Hasson v. Ford Motor Co., 32 Cal.3d 388 (1982) (similarity relaxed when evidence offered to show notice)
- Norgart v. Upjohn Co., 21 Cal.4th 383 (1999) (doctrine of invited error)
- Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991) (invited error and judicial rulings)
- Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498 (1961) (appellate review standard for excessive damages)
- Buell‑Wilson v. Ford Motor Co., 141 Cal.App.4th 525 (2006) (components of noneconomic damages)
- Adams v. Murakami, 54 Cal.3d 105 (1991) (punitive damages: reprehensibility, injury, wealth)
- Rufo v. Simpson, 86 Cal.App.4th 573 (2001) (assessing punitive damages and excessiveness)
- Moore v. Regents of Univ. of California, 51 Cal.3d 120 (1990) (physician must disclose economic interests; breach of fiduciary duty)
- Carlin v. Superior Court, 13 Cal.4th 1104 (1996) (duty to warn runs to physician for prescription drugs)
- Warner Construction Corp. v. City of Los Angeles, 2 Cal.3d 285 (1970) (fraud/non‑disclosure arises in transactions)
- Cobbs v. Grant, 8 Cal.3d 229 (1972) (informed consent: negligence vs battery)
- Stone v. Foster, 106 Cal.App.3d 334 (1980) (fraud v. negligence distinction in informed‑consent context)
- Safeway Stores, Inc. v. Nest‑Kart, 21 Cal.3d 322 (1978) (apportioning fault between strict‑liability and negligent defendants)
- DaFonte v. Up‑Right, Inc., 2 Cal.4th 593 (1992) (Proposition 51 purpose and apportionment)
- Arena v. Owens‑Corning Fiberglas Corp., 63 Cal.App.4th 1178 (1998) (Prop 51 applies in strict liability asbestos cases)
- Storage Services v. Oosterbaan, 214 Cal.App.3d 498 (1989) (guidance on punitive damages relative to net worth)
- State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (federal due‑process limits on punitive damages)