Scott v. C. R. Bard, Inc.
180 Cal. Rptr. 3d 479
Cal. Ct. App.2014Background
- Bard manufactured Avaulta Plus transvaginal mesh kits and Christine Scott had one implanted, leading to severe complications.
- A jury found Bard negligent and awarded $5.5 million to the Scotts; the court reduced the noneconomic damages by 40% due to Dr. Kannappan’s fault.
- Bard challenged the three negligence theories as legally defective and/or unsupported by substantial evidence; Scotts argued the surgeon’s fault should not be apportioned.
- Trial evidence included Bard’s training program for physicians and FDA public health notices (2008, 2011) plus a 2012 FDA letter seeking postmarket studies.
- The trial court initially barred FDA post-surgery actions but later allowed them; Bard sought mistrial and continuance, which were denied; the court instructed the jury on negligence standards and decided the verdict.
- The Court of Appeal affirmed, holding at least one negligence theory supported the verdict, Bard was not denied a fair trial, and the apportionment to the nonparty surgeon was permissible under the evidence and instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bard’s negligence theories were properly submitted | Scott argues theories supported by expert evidence | Bard argues theories were legally defective | The theories were properly submitted and supported by substantial evidence |
| Whether substantial evidence supports the negligence verdict | Scott contends all three theories supported | Bard asserts insufficient proof for at least one theory | At least one theory supported the verdict; design negligence sustained on substantial evidence |
| Admissibility of FDA postsurgery actions | Evidence relevant to foreseeability and FDA regulatory context | Evidence irrelevant or prejudicial under 1151/352 | Admissible; not reversible error; mid-trial reform of ruling not reversible error; 352 not abused |
| Impact of attorney and juror misconduct | No reversible misconduct occurred | Misconduct occurred warranting relief | No reversible prejudice; misconduct not shown to alter the outcome |
| Apportionment of fault to nonparty Dr. Kannappan | Fault apportionment requires medical standard-of-care proof | Apportionment permissible with nonparty fault proven | Apportionment upheld; Scotts estopped from challenging lack of instruction on medical standard; inconsistency found but not fatal to apportionment |
Key Cases Cited
- Brown v. Superior Court, 44 Cal.3d 1049 (Cal. 1988) (drug manufacturer immunity from strict liability does not bar negligence claims)
- Hufft v. Horowitz, 4 Cal.App.4th 8 (Cal. App. 1992) (applies to implanted medical devices under strict liability framework)
- Merrill v. Navegar, Inc., 26 Cal.4th 465 (Cal. 2001) (negligence and strict liability distinctions in product liability)
- Rotolo v. San Jose Sports & Entertainment, LLC, 151 Cal.App.4th 307 (Cal. App. 2007) (negligent undertaking theory and duties to third parties)
- Paz v. State of California, 22 Cal.4th 550 (Cal. 2000) (negligent undertaking elements and duty to protect third persons)
- Brown & Sharpe Mfg. Co. v. Magnante, 183 Cal.App.3d 764 (Cal. App. 1986) (subsequent remedial actions not always excluded in products cases (1151))
- Donlen v. Ford Motor Co., 217 Cal.App.4th 146 (Cal. App. 2013) (evidence-admissibility and jury prejudice considerations)
- Zagami, Inc. v. James A. Crone, Inc., 160 Cal.App.4th 1083 (Cal. App. 2008) (inconsistencies in special verdicts; appellate review limits)
- Andrews v. County of Orange, 130 Cal.App.3d 944 (Cal. App. 1982) (jury misconduct standard and harmless error inquiry)
- Cassim v. Allstate Ins. Co., 33 Cal.4th 802 (Cal. 2004) (standard for evaluating evidentiary rulings and jury instructions)
- Transport Ins. Co. v. TIG Ins. Co., 202 Cal.App.4th 984 (Cal. App. 2012) (establishes limits on apportionment when nonparties at fault)
- Kelley v. Trunk, 66 Cal.App.4th 519 (Cal. App. 1998) (medical standard-of-care expert testimony requirement)