Bigler-Engler v. Breg, Inc.

Filed 10/28/16

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VIRGINIA BIGLER-ENGLER, as D063556
Administrator, etc.,

Plaintiff and Appellant,

v.
(Super. Ct. No. GIC870982)
BREG, INC. et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Affirmed in part; reversed in part with directions.

Law Office of Marc O. Stern and Marc O. Stern; Boudreau Williams and Jon R.

Williams; Williams Iagmin and Jon R. Williams, for Plaintiff and Appellant Virginia

Bigler-Engler, as Administrator, etc.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of discussion parts I.; IV. C., D., E.; V. A.; VI.; and VIII.
 Bowman & Brooke and Michael J. Hurvitz; Gibson, Dunn & Crutcher, Theodore

J. Boutrous, Jr., Daniel J. Thomasch, and Blaine H. Evanson, for Defendant and

Appellant Breg, Inc.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Joshua C. Traver;

Neil, Dymott, Frank, McFall & Trexler, Clark Hudson and Jonathan R. Ehtessabian, for

Defendant and Appellant David J. Chao, M.D.

Law Offices of Adrienne D. Cohen, Adrienne D. Cohen, Danielle M. Dalton and

Julie R. Ursic, for Defendant and Appellant Oasis MSO, Inc.

This matter arises from Whitney Engler's use of a medical device, the Polar Care

500, that was manufactured by Breg, Inc. (Breg) and prescribed by David Chao, a

medical doctor. Engler suffered injuries as a result of her use of the Polar Care 500, and

she brought various tort claims against Chao, his medical group Oasis MSO, Inc. (Oasis),

and Breg, among others.

At trial, the jury considered Engler's claims for medical malpractice, design defect

(under theories of negligence and strict liability), failure to warn (also under theories of

negligence and strict liability), breach of fiduciary duty, intentional misrepresentation,

and intentional concealment. With a few exceptions, the jury generally found in favor of

Engler, and against the defendants, on these claims. The jury awarded $68,270.38 in

economic compensatory damages and $5,127,950 in noneconomic compensatory

damages to Engler. It allocated responsibility for Engler's harm as follows: 50 percent to

Chao, 10 percent to Oasis, and 40 percent to Breg.

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 The jury made findings of malice, oppression, or fraud as to each defendant on at

least one claim. In the punitive damages phase of trial, the jury awarded $500,000

against Chao and $7 million against Breg. The jury declined to award any punitive

damages against Oasis.

Breg, Chao, Oasis, and Virginia Bigler-Engler, as administrator of Engler's estate,

appeal.1 They raise numerous challenges to the judgment. In the published portions of

this opinion, we consider the following issues: (1) whether Engler's counsel committed

prejudicial misconduct during trial; (2) whether the jury's awards of noneconomic

compensatory damages and punitive damages are excessive; (3) whether the evidence

supported the jury's verdict against Breg for intentional concealment in the absence of a

transactional relationship between Breg and Engler (or her parents); (4) whether Oasis

falls within the medical provider exception to the doctrine of strict products liability; (5)

whether Breg was entitled to an instruction on the learned intermediary doctrine; and (6)

whether the Medical Injury Compensation Reform Act of 1975 (MICRA) (Civ. Code,

§ 3333.2) and Proposition 51 (Civ. Code, § 1431 et seq.) apply to the jury's verdict. In

the unpublished portions of the opinion, we consider additional challenges to the

sufficiency of the evidence, the trial court's jury instructions, the trial court's evidentiary

rulings and a posttrial order taxing costs.

1 Tragically, Engler was killed during the pendency of this appeal. Following her
death, Bigler-Engler was appointed administrator of Engler's estate. In that capacity,
Bigler-Engler has been substituted in place of Engler in this appeal.
3
 For reasons we will explain, we reverse the judgment in part. We conclude the

jury's verdict as to several claims was not supported by the evidence, including Engler's

intentional concealment claim against Breg and her strict products liability claim against

Oasis. In light of our reversal of Engler's intentional concealment claim against Breg, the

jury's punitive damages award against Breg must be reversed as well.

We further conclude the jury's award of noneconomic compensatory damages and

the jury's award of punitive damages as to Chao are excessive. Those awards will be

reversed as well and remanded for a new trial unless Bigler-Engler accepts reductions in

those awards to $1,300,000 and $150,000 respectively. In all other respects, the

judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

"As required by the rules of appellate procedure, we state the facts in the light

most favorable to the judgment." (Orthopedic Systems, Inc. v. Schlein (2011) 202

Cal.App.4th 529, 532, fn. 1.) In this section we provide an overview of those facts

necessary to understand the disputed issues in these appeals. Additional relevant facts

will be discussed in the following sections.2

In 2003, Engler, a high school athlete, consulted Chao regarding possible surgery

on her left knee. Engler had injured her knee while running hurdles and suffered from

2 We note that Bigler-Engler's statement of facts in her respondent's brief is
inadequate. Significant portions discuss documents and statements that were not
admitted at trial (such as premarked or identified exhibits) as if they provided a basis for
the jury's verdict. Throughout her briefing, Bigler-Engler does not distinguish between
facts derived from evidence actually admitted at trial and other facts.
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pain and weakness, especially during sports. Chao identified the presence of a loose

body underneath her patella and diagnosed Engler with "patella alta" (misalignment of

the patella). Chao also noted a possible tear in Engler's meniscus. Chao recommended

arthroscopic surgery. He provided Engler and her parents with a written disclosure of the

risks of surgery, which Engler's mother signed.

Chao recommended that Engler use a Polar Care 500 device after surgery. The

Polar Care device, manufactured by Breg, is a Class II medical device under California

law, available only by prescription. The Polar Care device is intended to deliver cold

therapy to the site of surgery or injury, along the same general lines as an icepack or bag

of frozen vegetables. The Polar Care device consists of a reservoir of ice water, a small

pump, and a pad to be placed on the site of surgery or injury. The pump circulates cold

water through the pad. A dial controls the amount of water that can flow through the pad.

This dial is intended to affect the temperature of the pad, i.e., as the amount of water

flowing through the pad decreases, the water flows more slowly through the pad and the

patient's body has a greater opportunity to warm it. A thermometer displays the

temperature of the water exiting the pad. The Polar Care device can operate continuously

for up to 11 hours before the reservoir of ice must be refilled.

Chao told Engler and her parents that the Polar Care device was superior to

traditional methods of cold therapy, such as an icepack, because it could be used

"continuously" rather than intermittently. Chao said the Polar Care device would

decrease her risk of infection and otherwise help Engler recover from her surgery. Chao

5
did not disclose any risks of using the Polar Care device, even though he knew risks

existed.

Chao gave Engler and her parents the choice of buying the Polar Care device from

his medical group, Oasis, or renting it from Oasis for a period after Engler's surgery.

Chao provided Engler and her parents with an Oasis form informing them of Chao's

recommendation that Engler use the Polar Care device and describing the two options.

The form stated, "Polar Care is a disposable cold therapy system that provides the

advantages of early cold therapy at a cost effective price. [¶] . . . [¶] Polar Care cold

therapy has been prescribed by your doctor to maximize your return to full function."

The form did not discuss any risks of using the Polar Care device.

Engler and her parents chose to rent the Polar Care device from Oasis. Although

Oasis (and therefore Chao) profited from the sale and rental of the Polar Care device,

Chao did not inform Engler or her parents of the financial interest he had in the

transaction.3 Chao also did not inform Engler or her parents that the Polar Care device

was available from sources other than Oasis.

3 At the time of Engler's surgery, Chao was a shareholder in Oasis. He attended
shareholders' meetings where revenues and profits from sales and rentals of medical
devices such as the Polar Care 500 were discussed. Chao had also performed research for
Breg and written publications with Breg personnel unrelated to cold therapy. Chao was
friendly with Breg executives, who paid for dinners and golf outings with Chao.
Historical ties also existed between other individuals at Oasis and Breg. For example,
Oasis's founder was a Breg shareholder, and another Oasis employee was a paid Breg
consultant who later went to work for Breg.

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 Engler's surgery occurred in May 2003, and it proceeded without incident. When

Engler awoke in a recovery room after surgery, her surgical wound had been dressed and

a Polar Care 500 device was attached to her knee. Chao's written discharge instructions

told Engler to use the device "at 45°F as much as possible for pain/swelling." Chao also

provided Engler and her parents with Breg's instructions for use, which indicated that the

"[d]esired temperature is typically between 45 to 55°F for continuous use and below 45°F

for sessions of 20 minutes or less." When Engler's mother asked whether continuous use

meant "24/7," Chao replied, "Yes, use it as much as possible." Similarly, when Engler's

mother asked Chao whether Engler should use the Polar Care device even when she slept,

Chao said yes. Neither Chao's written discharge instructions nor Breg's use instructions

provided any warnings about injuries from the use of the Polar Care device or disclosed

any risk of injury.4

Engler and her parents faithfully followed Chao's instructions. Engler wore the

Polar Care device as much as possible, including at night. Engler removed it only when

4 The Polar Care device itself had a label with the following warning: "WARNING:
A LICENSED HEALTH CARE PRACTITIONER MUST DETERMINE THE
CORRECT TEMPERATURE RANGE FOR EACH PATIENT. PATIENTS VARY IN
SENSITIVITY TO COLD. A PERIODIC CHECK OF THE TEMPERATURE MUST
BE MADE AFTER A FLOW RATE HAS BEEN ESTABLISHED FOR THE PATIENT.
CAUTION SHOULD BE TAKEN DURING PROLONGED USE, FOR CHILDREN,
DIABETICS, INCAPACITATED PATIENTS, AND THOSE WITH DECREASED
SKIN SENSITIVITY OR POOR CIRCULATION." Although Engler's surgery occurred
in 2003, this label dated from 1994. In the intervening years, Breg had updated its
labeling. Breg added warnings regarding skin blistering, itching, discoloration, and
increased swelling. Breg did not have a system for replacing labeling on devices that had
already been sold, however, and Breg's sales personnel in the San Diego area were
unaware of labeling updates.
7
she showered, rode in the car, or attended physical therapy. Except for one instance

when the thermometer on the device dipped below 45 degrees, Engler kept the

temperature between 45 and 50 degrees.

A week after her surgery, Engler saw Chao for a postoperative appointment.

Engler's knee was very swollen and painful. She "felt like it was going to explode."

Chao aspirated Engler's knee, which involved draining fluid using a large needle.

Engler's mother asked Chao whether Engler should continue to use the Polar Care device.

He said Engler should use it for at least one week as long as she had pain and swelling.

Engler scheduled a follow-up appointment for a month later.

Engler continued to use the Polar Care device as much as possible. After almost

two weeks, Engler noticed increased redness and several small blisters on her knee.

Engler's mother left a message at Chao's reception desk, but she did not receive a call

back. By the next day, the blisters had increased in size, and one burst. Engler's mother

called Chao's office and left a message, but again she did not receive a call back. The

next morning, Engler noticed a large black area of dead tissue covering much of the

upper half of her knee. Engler's parents called Chao's office again. Chao called them

back and told them to bring Engler to his office immediately.

Chao examined Engler's knee. He told Engler and her parents that he had never

seen anything like Engler's wound before. He wrote the following in Engler's medical

records: "I believe she has at least partial-thickness, possibility full-thickness skin

damage, and needs emergent plastic surgery consultation. She is likely to need a future

procedure in terms of skin, graft, debridement, wound closure and possibly even flap.

8
Referred to Plastic Surgeon. We will hold off on any icing or physical therapy." Chao

also wrote, "At this point in time, I am not sure as to the exact reason [for the damage],

possibly over-icing versus infection."

Chao referred Engler to a specialist for immediate treatment. That specialist

determined Engler's wound was too difficult for him to handle and referred Engler to

Deniz Gocken, a medical doctor specializing in plastic surgery and wound treatment.

Gocken examined Engler and admitted her into the hospital. After observing the wound,

Gocken performed surgery on June 12 to remove the dead tissue from Engler's knee.

Engler remained in the hospital for one week.

Engler's surgery left a large open wound, which took nine additional procedures in

2003 to clean and close. Each of these procedures was performed under local anesthetic

and was very painful. Gocken believed that continuous use of the Polar Care device had

caused Engler's injury.

When the wound healed, it left a scar covering a large portion of Engler's knee,

approximately four inches by three inches in size. The scar caused Engler emotional

distress because she was self-conscious about its appearance and because classmates and

her boyfriend teased her. Engler subsequently had two scar reduction surgeries in 2007

and 2008. After each surgery, Engler was forced to immobilize her knee for six weeks.

Engler felt guilty about having the scar reduction surgeries because her father became

unemployed during this time and her family paid for the second surgery out-of-pocket.

By the time of trial in 2012, Engler had a modest but noticeable scar across the top

portion of her knee. Engler's expert witness recommended two more scar revision

9
surgeries, each to be followed by six weeks of immobilization, that would further

decrease the size of the scar. The area surrounding the scar was hypersensitive and

painful to the touch. Engler also felt numbness and a deep itching sensation that she

could not scratch. Engler had some functional limitations, including weakness and pain

while kneeling, inability to continue to ride horses competitively, difficulty with some

dance styles (specifically hip-hop), and difficulty riding a bike accompanied by her

leashed dog.

In 2006, after seeing a news article about a lawsuit involving Chao and a Polar

Care device, Engler filed her own suit against Chao, Oasis, Breg, and others. Several

years of contentious litigation ensued, and the court held an eight-week jury trial

beginning in May 2012.

At trial, in addition to numerous other lay and expert witnesses, Engler presented

evidence from three medical experts that Breg's Polar Care device inflicted a nonfreezing

cold injury (NFCI) on her knee. Engler's medical experts testified that the application of

cold therapy causes blood vessels to constrict (vasoconstriction), which lowers blood

flow and deprives surrounding tissues of oxygen and nutrients. Dangerous

vasoconstriction can occur even at the temperature recommended by Chao and Breg (45

degrees) for continuous use of the Polar Care device. Based on the manner of Engler's

use, her risk of suffering an NFCI began after three or four days of use and increased with

further use. The symptoms of an NFCI include redness or whiteness on the skin and

swelling and blistering in the affected area. A serious NFCI, such as that suffered by

Engler, causes the death of the surrounding nerves and tissue.

10
 Breg had received numerous reports of individuals who had suffered injuries

associated with the Polar Care device. According to Engler's experts, these reports put

Breg on notice that the Polar Care device was hazardous. One injured individual was Jeff

Warner, whom Chao treated several years before Engler. Warner had a history of prior

knee surgeries. Chao performed an additional surgery on Warner's knee and prescribed

the Polar Care device for his use. As with Engler, Chao recommended that Warner use

the Polar Care device at 45 to 55 degrees "as much as possible to alleviate pain and

swelling." In the weeks that followed, Warner experienced redness, swelling,

inflammation, and finally mild necrosis on his knee. Chao recommended that Warner

continue to use the Polar Care device to reduce swelling. Two weeks later, Warner's

necrosis had worsened and Chao referred him to a plastic surgeon. The surgeon

performed a skin graft on Warner's knee, a procedure that Chao witnessed. It was highly

unusual for Chao to watch such a procedure. Warner subsequently sued Breg and Chao,

among others, in 1999. Chao received Warner's summons and complaint. Warner

retained the same experts that Engler would later retain.5

Based on its injury reports, and according to Engler's experts, Breg knew that use

of the Polar Care device could cause injury, including NFCI's. Breg did not adequately

investigate these reports or make them known to the public. Breg also failed to

investigate whether the Polar Care device was safe for continuous use at 45 to 55 degrees

before marketing the device to the public. The Polar Care 500 was primarily designed by

5 The same attorney represented both Engler and Warner.

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two founders of Breg, Bradley Mason and his brother Jeff, the latter of whom had no

formal education after high school. And, although Breg conducted a study on pigs

several months before Engler's surgery, its results were not promising. In the study, a

Breg executive researched the effects of continuous use of the Polar Care device over 72

hours.6 Over the course of the study, three of the 12 pigs in the study died. Several pigs

exhibited signs of focal skin necrosis, consistent with NFCI, after as few as 30 hours of

continuous use. Despite this research, Breg denied that the Polar Care device could cause

NFCI's when used according to its instructions.

Although Breg touted the benefits of continuous use cold therapy, there was no

evidence the Polar Care device was more effective than intermittent icing with an icepack

or bag of frozen vegetables. In addition to the risk of injury, continuous use cold therapy

can slow down the healing process. Engler's medical expert testified that it was below

the standard of care for Chao to prescribe continuous use cold therapy without constant

professional monitoring.7 It was also below the standard of care for Chao to prescribe

6 The Breg executive responsible for the study, Patrick Cawley, claimed on his
resume to have bachelor's and doctoral degrees in science. Cawley was impeached by
evidence showing that he did not obtain a bachelor's degree and his doctoral degree was
granted by a school in England on the basis of professional experience and basic research
submitted by mail. Cawley did not take any classes at the school, sit for any exams, or
participate in any interviews. In fact, Cawley had never been to the school's campus at
all.
7 Testing conducted by one of Engler's medical experts revealed that the Polar Care
device's temperature controls were ineffective and inadequate. Except for the highest
setting, the flow control valve did little to modify the temperature of the Polar Care pad.
And, regardless of the flow control setting, the water entering the pad—which came
directly from the ice reservoir—was just above freezing. The use of such cold water
increased the risk of injury. Because the thermometer on the device measured the
12
any cold therapy after the first day or two after Engler's surgery; any further cold therapy

was unnecessary and potentially harmful.

Chao first learned about cold therapy during his medical residency. He has

prescribed mechanized cold therapy, like the Polar Care device, to thousands of patients.

Chao denied knowing that continuous use of mechanized cold therapy at temperatures of

45 to 55 degrees could cause injury if used properly or that cold therapy could cause

NFCI's when no moisture was present.8 Chao denied learning from Breg or any other

medical device manufacturer that continuous use of mechanized cold therapy risked

injury.

At trial, Breg, Oasis and Chao disputed that continuous use of the Polar Care

device would cause injury if used correctly. They contended that continuous use

mechanized cold therapy was medically appropriate and offered advantages over

traditional cold therapy (e.g., an ice pack or a bag of frozen peas). Defense experts gave

alternate explanations for Engler's injury. Chao's expert, for example, testified that

Engler used the Polar Care device improperly, which caused her injury. Breg's expert

believed that Engler's injury was caused by an infection.

The jury found against Chao on Engler's claims for medical malpractice, breach of

fiduciary duty, intentional misrepresentation, and intentional concealment. The jury

temperature of the water exiting the pad after it had already been warmed by the patient's
body, this thermometer was of little use.

8 Historically, NFCI's were associated with moisture. For example, NFCI's were
identified in soldiers during World War I who stood in water and were subsequently
exposed to cold. The resulting injury was known was "trench foot."
13
found against Oasis on Engler's claims for medical malpractice, design defect, failure to

warn, and breach of fiduciary duty. The jury found in Oasis's favor on Engler's claims

for intentional misrepresentation and intentional concealment. As to Breg, the jury found

against it on Engler's claims for design defect, failure to warn, and intentional

concealment. The jury found in Breg's favor on her claim for intentional

misrepresentation.

The jury further found that Chao and Oasis had acted with malice, oppression, or

fraud in connection with Engler's claim for breach of fiduciary duty, that Chao had so

acted in connection with Engler's claims for intentional misrepresentation and intentional

concealment, and that Breg had so acted in connection with Engler's claim for intentional

concealment. As noted, the jury awarded $5,196,220.38 in compensatory damages to

Engler, allocating responsibility for Engler's harm as follows: 50 percent to Chao, 10

percent to Oasis, and 40 percent to Breg. In the punitive damages phase of trial, the jury

awarded $500,000 against Chao and $7 million against Breg. The jury declined to award

any punitive damages against Oasis. Defendants filed motions for judgment

notwithstanding the verdict and for a new trial, which the trial court denied.

DISCUSSION

I. Evidence Regarding "Other Similar Incidents"

A

Breg contends the court prejudicially erred by allowing testimony regarding 139

other incidents where Breg had received a report of a Polar Care device causing injury.

Breg argues the trial court failed to perform its required gatekeeping function before

14
allowing Engler's experts to consider these reports. Chao similarly contends that it was

prejudicial error to admit testimony related to one such incident involving Chao's former

patient Jeff Warner.

Prior to trial, Engler pursued discovery of information related to injury reports

Breg had received. Engler also compiled her own list of alleged injuries from other

sources. After years of delay, and several court orders, Breg produced its injury claim

files. Based on Breg's conduct in obstructing discovery, the court stated its intent to issue

the following evidentiary sanction: "On January 15, 2009, this Court ordered Breg to

produce contact information, that is name, address and phone numbers, of all persons

who have notified Breg of any injury that had been sustained as a result of the use of any

of their Polar Care products. In response, Breg provided contact information on 17 cases

on September 28, 2009. Since then it has been learned that Breg had information on at

least a hundred more [claims] which should have been provided." At trial, however, the

court decided not to read this sanction to the jury based on Breg's concern that it was

unduly prejudicial.

Because of the delay in production of the injury claim files, many (if not all) of the

parties' experts had already been deposed by the time Breg produced the files. The court

and the parties discussed how to manage the experts' consideration of the recently

produced information. Breg disputed whether all of the other incidents were relevant.

Early in the discussions, the court remarked, "Here's what I think we have to do. We

have to go through all these. I can give you my tentative feelings about it. [¶] . . . [¶]

And it could be that we're going to end up with, out of 60, I think 40 of them are

15
admissible because they are clearly . . . cold injuries. . . . [¶] But I have to see what the

overall picture is first." The court repeated its impression during the same hearing: "I

think what we'll do, we'll go through these and I'll give you a tentative on each one, and

when we're done, I may go back and modify that." The court believed that any incidents

it found admissible could be relied upon by Engler's experts in their opinions, "and there

may be some last minute opportunities to depose on some of these right before the

testimony."

At the next hearing, the court again explained its proposed procedure: "This is my

idea of . . . the tentative procedure for handling prior similar incidents. [¶] It's going to

be presented through the testimony of experts. It's the type of hearsay that experts

customarily rely on. What I contemplate is a preliminary review where the Court may

rule out certain of these instances as not meeting the minimum requisites for prior similar

incidents. [¶] Then they will be presented to the [plaintiff's] experts . . . through the

plaintiff's counsel, who showed them all these documents that they haven't seen. Then

plaintiff's counsel will tell us in advance of their testimony which ones they are going to

rely on. . . . [¶] And they will be available for last-minute supplemental depo[sitions]

regarding the scope of these opinions as related, especially related to specific instances

that they are relying upon." The trial court further explained, "I also think it's important

to go through each of these instances, give the defense a chance to eliminate them. From

the cases that I've read, I do think the appellate courts expect the trial courts to exercise a

gatekeeper function and make some kind of determination."

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 The court began consideration of each of the incidents Engler intended to

introduce. The court eliminated the first, allowed the second, and eliminated the third,

fourth, and fifth. Engler's counsel complained about the process, but the court was

unpersuaded: "I'm going to continue to go through these one at a time. You might want

to make some argument at the end that I ought to reevaluate for some reason, but right

now I'm reviewing them based on the information that we have to see if they are cold

injuries." The court continued to provide its tentative rulings on eight more incidents and

hear argument from counsel.

The next day, the parties and the court began discussing alternatives to going

through each incident individually. The court recognized, "It's going to take us a couple

of weeks to go through these." The court and the parties discussed various categories of

incidents that could potentially be eliminated from the universe of incidents to consider.

The court recognized such an agreement could only be made by stipulation. The

alternative, in the court's view, was "to force the Court to go through each of these, and I

really don't—I'll do the best I can, but I don't have a high—I haven't even heard the

experts in the case. I don't have a real high degree of confidence in what I'm doing.[9]

And I do believe, and I hear the arguments from both sides, and I believe those arguments

could be made to the jury and let the jury decide what—how significant this is or if it

supports the defense or supports the plaintiff." The court and the parties considered

9 The court appeared to be expressing its concern that the process of going through
the incidents individually, as the court had been doing, may not be conclusive because the
court had not yet heard the experts give their views of similarities and differences
between the other incidents and Engler's injuries.
17
whether an agreement could be reached regarding the admission of other incidents

evidence. The court took a recess to allow the parties to discuss the issue.

After the recess and a discussion off the record, the court explained, "What we're

doing, we're just beginning a process of entering into some kind of global stipulation

regarding how these claims of other injuries are going to be treated. But the starting

point of the stipulation is a recognition by both sides this process of going through 500

claims one at a time for the Court to make some preliminary determinations of

admissibility is unduly time consuming and tedious. In fact, it has the potential of

delaying the whole trial. . . . [¶] As an alternative to that process, we're going to first

eliminate a large number of the claims as to which we have very little information about

right now . . . ." The court then stated that the remaining claims would be presented to

the jury at trial and the parties would have the opportunity to argue how significant they

are.

Breg's counsel responded, "Your Honor, I think we're with you generally on why

we're doing this. We have an issue in [that] there are others who are involved. We can't

stipulate at this point, and so eventually it may become necessary for you to exercise your

authority under [Evidence Code section] 352 and other code sections to say this is what

I'm ordering, and we are happy to have [that] discussion. I just, as we sit here now, I

can't say that at the end of this process we're going to be able to say Breg stipulates to all

of this." After a few comments back and forth with the court, Engler's counsel remarked,

"And we won't argue that there was a waiver."

18
 The court again explained the perceived advantages of a stipulation. Breg's

counsel responded, "Your Honor, perhaps I was not clear. I'm not disagreeing with

anything you just said. I'm just saying at the end of this process I'm not sure I'll be in a

position to say Breg stipulates." The court stated, "Let me ask you this. Do you feel that,

does either side wish to require the Court to continue to make this incident-by-incident?

Is either side demanding the Court engage in this process of looking at each incident and

trying to make . . . some kind of preliminary determination?" Breg's counsel answered,

"Breg is not. We're suggesting we do what you asked us to do, suggest we do, which is

meet with counsel and come up with something that makes more sense than what we did

yesterday and for awhile this morning." After further discussion, Breg's counsel again

stated, "I think it behooves all parties to see if there's a way that makes more sense than

what—than the process you just outlined, going through all 500-plus."

The parties also discussed the manner in which any incidents discussed at trial

would be presented to the jury. The court stated that the incidents themselves would not

be admitted into evidence; they would be received for the limited purpose of supporting

expert testimony. Later, Breg's counsel clarified that Breg believed Engler's counsel

could question Breg's witnesses about the injury files, but that the injury files themselves

should not be admitted.

Later in the hearing, Breg's counsel again expressed support for the court's

proposal: "I think we ought to be able to get through the other similar incidents this

afternoon and we ought to come back tomorrow morning and report to the Court here's

where we are, here's what we think is a workable plan. I should have a better answer

19
from my clients and their principals about stipulations, which as I said is a challenge. But

I think we will be able to lay out for you in greater detail what you just outlined, your

Honor, how it's going to work, what is the universe of complaints, what are these things

admissible for, and then how they will be used at trial."

The next day, Breg reported progress in the discussions about a stipulation. The

court and the parties discussed various issues impacted by evidence of other incidents.

The court suggested that Breg may want to allow evidence of a broader number of other

incidents, so that it could focus on ones that were entirely dissimilar to Engler's injury.

Later in the hearing, the court asked whether Breg wanted to go back to the incident-by-

incident process. Breg's counsel responded, "No. I think everybody agrees, as I said

yesterday, I think everybody agrees that's probably not the best way to do it. I think we're

on the right track." Breg's counsel told the court the stipulation could probably be

finalized that day.

That afternoon, Breg's counsel informed the court, "I think we have something to

propose." Breg's counsel stated that the universe of similar incidents to be discussed at

trial would be listed in chart form on a new Exhibit 135. Breg's counsel explained, "So

number one, stipulation between Breg and plaintiff, number one, reports of adverse

events in this case will be limited to those on Exhibit 135, with the possible exception of

any case from [another proceeding] that plaintiff brings to the attention of the Court and

the Court finds can be added to Exhibit 135." The parties then discussed related issues,

including the exchange of expert information and the possibility of live testimony from

other injured individuals. Although the parties referenced Exhibit 135 in this discussion,

20
it appears the chart was eventually marked as Exhibit 134. It was not admitted into

evidence.

At trial, Engler called a Breg executive, Kathleen Barber, as her first witness.

Barber testified about Breg's awareness of Warner and his injuries. Engler's counsel

asked Barber about Breg's injury files, including specific reports of injury. Breg objected

to certain questions regarding some details of other incidents, which the court sustained.

Later during Barber's testimony, in response to a Breg objection, the court issued a

limiting instruction: "Ladies and gentlemen, the only purpose that this is being offered

for is not to prove that what actually is in the reports actually happened, but as it may

tend to show that [the reports] placed Breg on notice that there were some problems

associated with the use of the device, [it] is only offered for that limited purpose."

Engler's counsel continued to ask about specific injury reports. Breg did not object to

some of the questions involving specific incidents. Breg objected to other questions

involving incidents after Engler's surgery, which the court sustained. Breg's counsel

requested a running objection to such incidents, but the court found the objection

unnecessary. It agreed with Breg's position: "This is offered for really the purpose of

notice, so it has to precede Whitney Engler's surgery." Later, the court appeared to

reverse course with respect to one incident, on the theory that a later incident would show

a pattern and practice of concealment. After further testimony, the court told counsel,

outside the presence of the jury, that it believed the jury had heard enough about other

incidents and it would be inclined to sustain objections to any further testimony under

Evidence Code section 352. Later in the trial, the parties' experts discussed the injury

21
files to the extent they formed the basis of their opinions or their critique of other experts'

opinions.

B

Breg contends the trial court abdicated its gatekeeping duty by refusing to

determine whether the 139 incidents discussed at trial had sufficient similarity to Engler's

injury to be admissible.

"Evidence of other accidents is admissible to prove a defective condition,

knowledge, or the cause of an accident, provided that the circumstances of the other

accidents are similar and not too remote." (Ault v. International Harvester Co. (1974) 13

Cal.3d 113, 121-122.) This principle includes subsequent incidents, which may be

relevant to show a defective condition or causation. (Simmons v. Southern Pac.

Transportation Co. (1976) 62 Cal.App.3d 341, 365; Fuller v. State of California (1975)

51 Cal.App.3d 926, 943-944.) In either case, the trial court has a gatekeeping duty to

determine whether other incidents are sufficiently similar to be relevant to a disputed

issue, e.g., identity, defect, knowledge, or causation.

"A trial court should determine the admissibility of each incident on the basis of

whether it is relevant under Evidence Code section 350 and satisfies the requirements of

Evidence Code section 352." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d

112, 133.) " 'Identical conditions will rarely be found. Substantial similarity is normally

sufficient.' " (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 404.) Moreover, "[w]hen

evidence is offered to show only that defendant had notice of a dangerous condition, the

requirement of similarity of circumstances is relaxed: ' "all that is required . . . is that the

22
previous injury should be such as to attract the defendant's attention to the dangerous

situation . . . ." ' " (Ibid.)

The trial court did not evaluate the 139 other incidents discussed at trial for

substantial similarity. The record shows, however, that the trial court was aware of its

gatekeeping duty and was willing to undertake the required analysis. The court's

gatekeeping function was displaced by the parties' stipulation, joined and summarized by

Breg's counsel, which allowed evidence of a limited number of incidents for limited

purposes. We must therefore determine whether Breg invited the error.

"The 'doctrine of invited error' is an 'application of the estoppel principle': 'Where

a party by his conduct induces the commission of the error, he is estopped from asserting

it as a ground for reversal' on appeal." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,

403 (Norgart); see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 (Mary M.)

["Under the doctrine of invited error, when a party by its own conduct induces the

commission of error, it may not claim on appeal that the judgment should be reversed

because of that error."].) "At bottom, the doctrine rests on the purpose of the principle,

which prevents a party from misleading the trial court and then profiting therefrom in the

appellate court." (Norgart, supra, 21 Cal.4th at p. 403.)

As our detailed recitation of the record shows, Breg repeatedly informed the trial

court that it believed a stipulation governing the admission of testimony related to other

instances was desirable. This stipulation was specifically intended to obviate the need for

the trial court to make its own determinations regarding the relevance of each incident.

For example, Breg told the court, "I think it behooves all parties to see if there's a way

23
that makes more sense than what—than the process you just outlined, going through all

500-plus." Later, the court asked whether Breg would rather the court consider the

incidents individually. Breg's counsel responded, "No. I think everybody agrees, as I

said yesterday, I think everybody agrees that's probably not the best way to do it. I think

we're on the right track." Breg's counsel took the lead presenting the terms of the

stipulation to the court. Under these circumstances, Breg invited any error related to the

court's failure to consider the relevance of each incident individually by stipulating to the

139 other incidents that were eventually the subject of testimony at trial. If, as Breg now

contends, Breg believed such a stipulation would lead to reversible error, its statements to

the trial court were highly misleading. Application of the doctrine of invited error is

therefore appropriate here.

Breg contends that the court forced it to stipulate and therefore Breg simply made

the best of a bad situation. "[T]he doctrine does not apply when a party, while making

the appropriate objections, acquiesces in a judicial determination. [Citation.] As [the

Supreme Court] has explained, ' "An attorney who submits to the authority of an

erroneous, adverse ruling after making appropriate objections or motions, does not waive

the error in the ruling by proceeding in accordance therewith and endeavoring to make

the best of a bad situation for which he was not responsible." ' " (Mary M., supra, 54

Cal.3d at pp. 212-213.) Breg contends it repeatedly objected to any proposed stipulation

and only acquiesced when the court ordered it to stipulate.

We have reviewed the record in detail, and it does not support Breg's

interpretation. While the court did express concern over of the length of time the parties

24
would spend litigating the issue of substantial similarity for the hundreds of other

incidents Engler sought to introduce, it is clear from the record that the parties' decision

to stipulate was voluntary. The court repeatedly asked Breg whether it wanted to return

to the incident-by-incident process Breg now contends was required. In each instance,

Breg declined and expressed its belief that a stipulation was the more desirable way to

resolve the issues. We note that in posttrial motions, when Breg presented its version of

these events to the trial court, the court characterized Breg's version as "totally

reinvented," "totally fallacious," a "total mischaracterization," and "reinventing history."

We agree with the trial court's assessment that Breg's version of events is wholly

unsupported by the record.

Breg also claims it was "[f]aced with the prospect of 500 irrelevant incidents

coming in" to evidence. But, as part of its incident-by-incident analysis, the trial court

had rejected the majority of incidents as not substantially similar and therefore irrelevant.

There is no reason to believe the trial court would not have fairly and competently

assessed the other incidents offered by Engler had the parties not entered into their

stipulation. Breg further claims it " 'repeatedly—but unsuccessfully—advised the court' "

of its obligation to consider each incident individually for relevance and therefore did not

invite any error. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 329.) Breg did

advise the court of its obligations, but then Breg was successful. The court agreed to

conduct an incident-by-incident assessment. The court was willing to continue that

process, but the parties (including Breg) believed a stipulation was more desirable.

25
 Breg contends that Engler's counsel agreed that Breg's stipulation would not be a

waiver of Breg's right to object later, thereby preserving the issue for review on appeal.

(See People v. Calio (1986) 42 Cal.3d 639, 642-644.) We disagree. When the court and

the parties initially discussed the possibility of a stipulation, Breg said it was open to

discussions about which incidents to include in a stipulation but it could not commit to

stipulation at that time. In that context, Engler's counsel remarked, "And we won't argue

that there was a waiver." The meaning of Engler's counsel's statement is clear: Engler

would not argue that Breg had waived its objections to any incident merely by discussing

its inclusion in a stipulation. Engler's counsel's statement had no effect after Breg

stipulated. Neither Breg nor any other party made a similar statement preserving its

rights when Breg announced the terms of the stipulation.

Breg also contends it did not receive any benefit from the stipulation, so it could

not have voluntarily agreed. Breg claims any hypothetical benefit must be premised on

the assumption that all of the other incidents were admissible. Not so. Breg and Engler

had a dispute over which of the other incidents were admissible. Through the stipulation,

Breg obtained assurance that Engler would not seek to introduce incidents beyond those

to which Breg agreed. Engler, on the other hand, obtained assurance Breg would not

object to the limited discussion of the incidents that were part of the stipulation. Each

party benefited. Breg now appears to believe that the stipulation was not a favorable

trade. But that fact, if true, does not call into question the voluntariness of its stipulation

under the circumstances here.

26
 We conclude the doctrine of invited error applies here. Breg stipulated that a

limited number of other incidents could be discussed at trial. It may not now claim

prejudicial error because the trial court accepted that stipulation and acted accordingly.

C

Breg contends that even if it stipulated that 139 other incidents could be discussed

at trial, the "manner in which [they] were used was improper and prejudicial."

(Capitalization omitted.) Breg fails to explain, however, how the allegedly improper use

of the 139 other incidents was prejudicial in light of (1) its stipulation that the other

incidents could be used at least for limited purposes and (2) the other evidence in the

record supporting Engler's claims. For example, Breg points to one instance where

Engler's counsel read the contents of a specific incident report in the presence of the jury.

But, as Breg acknowledges, the court admonished the jury to disregard that statement.

Breg has not shown how that isolated reference was prejudicial given the entire record.

Similarly, Breg claims error in the court's instruction that the jury should disregard

evidence of incidents it did not believe were substantially similar.10 Viewed in isolation,

the court's instruction was erroneous because it tasked the jury with deciding whether the

10 During Barber's testimony, the court gave the jury the following instruction: "And
also, later on ladies and gentlemen, there may be a discussion about some of these events
that occurred afterwards through experts from both sides who may disagree about
whether or not these incidents were similar to Whitney Engler's injury. And it will be,
you know, it will—if it's admitted to show that somehow Breg concealed information,
that it turns out it is not similar to Whitney Engler's injuries and you after hearing the
testimony of experts you believe that the injuries are different, it is not really similar, then
it would have no—should have no weight on your decision but that will depend upon
testimony you haven't heard yet from expert[ ] witnesses."
27
other incidents were sufficiently similar to be relevant and admissible. As noted, and as

the trial court itself stated in pretrial discussions, this determination is the court's

responsibility. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 133.)

Given the parties' stipulation, however, this error appears to be invited as well.

Moreover, we fail to see how this instruction—in and of itself—prejudiced Breg. Based

on our review of the record, the instruction likely assisted Breg in arguing that the jury

should disregard various incidents discussed pursuant to its stipulation because they were

not sufficiently similar to Engler's injury.

Breg also argues that the other incidents were "misused" to prove notice and

causation. Breg's argument amounts to scattered disagreements with Engler and her

experts about the significance of the evidence of other incidents and whether they

supported Engler's claims. But Engler's experts were also allowed to discuss the other

incidents under the stipulation. To the extent Breg now contends these other incidents

should not have been the subject of expert testimony, Breg has invited the error for the

reasons we have already discussed. To the extent Breg contends the expert testimony

was inadmissible for any other reason, Breg has not shown it properly preserved any

objection, that admission of any testimony was an abuse of discretion, or that any alleged

error was prejudicial. Similarly, Breg's claim that Engler's counsel used the 139 other

incidents as a "collective club" is conclusory and unsupported by any legal analysis

28
showing error or prejudice stemming from any specific statement.11 (Italics and bold

typeface omitted.)

D

Breg, joined by Chao, focuses on Engler's "misuse" of one prior incident involving

Warner. Breg characterizes the trial court's ruling allowing admission of facts

surrounding the Warner case for the purpose of notice as "[a]stonishing[]" but fails to

connect its argument to established legal standards governing the admission of prior

incidents for purposes of notice.

"Before evidence of previous injuries may be admitted on the issue of whether or

not the condition as it existed was in fact a dangerous one, it must first be shown that the

conditions under which the alleged previous accidents occurred were the same or

substantially similar to the one in question. [Citations.] The strictness of this

requirement of similarity of conditions is 'much relaxed,' however, when the purpose of

the offered evidence is to show notice, 'since all that is required here is that the previous

injury should be such as to attract the defendant's attention to the dangerous situation

which resulted in the litigated accident.' " (Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d

210, 220; see Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 404 ["When evidence is

offered to show only that defendant had notice of a dangerous condition, the requirement

of similarity of circumstances is relaxed: ' "all that is required . . . is that the previous

11 Breg's additional argument that evidence of other incidents was misused to prove
concealment is moot in light of our reversal of the jury's verdict on Engler's concealment
cause of action. (See part IV. A., post.)
29
injury should be such as to attract the defendant's attention to the dangerous

situation . . . ." ' "].) We review the court's decision to admit evidence of other incidents

for abuse of discretion. (Salas v. Department of Transportation (2011) 198 Cal.App.4th

1058, 1072 ["The question of admissibility of other accidents is primarily one for the trial

court and is confined to its sound discretion."].)

Breg and Chao have not shown any abuse of discretion in the trial court's

admission of evidence related to Warner. This evidence was introduced for purposes of

notice. The trial court could reasonably have found that the circumstances of Warner's

injury were sufficiently similar to the circumstances of Engler's injury—including the

same medical device, the same instructions, and similar resulting injuries and

treatments—to attract Breg and Chao's attention to the dangerous situation posed by the

Polar Care 500 when used as Breg and Chao recommended for Engler. Breg and Chao

point to factual differences that distinguish Engler from Warner, including Warner's

presurgical scars that reduced his circulation in parts of his knee. Reduced circulation

was potentially a contraindication for cold therapy like the Polar Care 500. But, on this

record, these factual differences do not make the trial court's decision unreasonable given

the other similarities between the two incidents.

Chao additionally argues that evidence related to Warner should have been

excluded under Evidence Code section 352. That statute provides as follows: "The court

in its discretion may exclude evidence if its probative value is substantially outweighed

by the probability that its admission will (a) necessitate undue consumption of time or (b)

create substantial danger of undue prejudice, of confusing the issues, or of misleading the

30
jury." (Evid. Code, § 352.) Chao claims he was unduly prejudiced by admission of

evidence relating to Warner because Warner was also Chao's patient, also used the Polar

Care 500, also developed a necrotic wound, and also sued. Chao's argument, however,

highlights the similarities between Engler's and Warner's circumstances. Based on the

record before us, we cannot say the court abused its discretion under Evidence Code

section 352 in admitting evidence related to Warner. (See Vorse v. Sarasy (1997) 53

Cal.App.4th 998, 1009 ["The prejudice that [Evidence Code] section 352 ' "is designed to

avoid is not the prejudice or damage to a defense that naturally flows from relevant,

highly probative evidence." [Citation.] "Rather, the statute uses the word in its

etymological sense of 'prejudging' a person or cause on the basis of extraneous

factors.". . . '. . . ."].)

II. Misconduct by Engler's Counsel

Oasis and Chao contend the trial court erred by denying their motions for a new

trial on the grounds that Engler's counsel, Marc Stern, committed prejudicial misconduct.

They argue Stern denigrated defense counsel and the court, repeatedly violated pretrial in

limine rulings, and attempted to prejudice the jury through unethical trial tactics. We

agree there were several instances where Stern acted inappropriately. However, based on

our independent review of the record, and taking into account the trial court's

observations about the nature of the proceedings during a hearing on defendants' motions

for a new trial, we conclude Oasis and Chao have not shown prejudice.

31
 A

The record shows Stern insulted and ridiculed defense counsel in the presence of

the jury on multiple occasions. During his examination of a Breg executive, Stern

suggested that Polar Care devices be tested on defense counsel (as in Breg's pig study)

because "[t]hey're just lawyers, okay." When defense counsel examined Bigler-Engler

and asked whether she could open a Band-Aid for use during questioning (because

Engler had used Band-Aids after surgery), Stern interrupted, asking whether counsel was

going to put the Band-Aid over her mouth: "Are you going to put it over your mouth

or—I don't have an objection." Several days later, Stern repeated his remark, more

forcefully this time: "I think this is déjà vu. I'm almost sure. Am I going to have to

suggest that she put that Band-Aid on her again?"

During Stern's examination of an expert witness, the court sustained a defense

objection on the ground the defense had not been provided the information. Stern then

remarked, "They don't want to know, apparently." Breg's counsel objected and moved to

strike, which the court granted. The court told Stern, "Try to cut down on the gratuitous

remarks," but Stern retorted, "TMI?" (i.e., too much information). Similarly, during

defense examination of an expert witness, Stern objected to a defense question. The

court overruled Stern's objection, but Stern continued, "It's ridiculous, too." Again, the

32
court admonished Stern: "Mr. Stern, no more of those under-the-breath remarks, okay?

That is very unprofessional. And the jury is admonished to disregard those remarks."12

Stern's disrespect extended to the court. Stern repeatedly violated the court's in

limine rulings. Contrary to the court's orders, Stern asked about a defense expert's history

of malpractice claims, suggested Chao had been involved in other malpractice suits,

named the founder of Oasis (the publicity surrounding whom may have been unduly

prejudicial), detailed relationships between Breg, Oasis, and Chao unrelated to the Polar

Care device and cold therapy, described the Polar Care 500 as a "dangerous device"

under California law, and referenced an offer to purchase Oasis's durable medical

equipment business.13 Stern persisted in asking questions despite sustained objections

and made improper speaking objections in front of the jury.

Many of these violations drew objections, which were for the most part sustained.

At one point, the court remarked on the persistence with which Stern pursued

objectionable topics. In the presence of the jury, the court stated, "I'm waiting for the

12 Outside the presence of the jury, Stern implied that Chao's counsel was part of the
Ku Klux Klan. Chao's counsel told the court he would be away for the weekend at a
ranch "somewhere out east." Stern interjected, "Where they run around with white sheets
over their heads."

13 Oasis contends that Stern improperly suggested to the jury that Warner's lawsuit
had settled. Stern said, "You know, I have my own guilt about my role in this case. I
often think if I had tried the Warner case, Whitney wouldn't have been injured." Stern's
statement does not disclose that Warner's lawsuit settled. And our review of the record
does not show any objection by Oasis or the other defendants to Stern's statement. Oasis
also contends that Stern held photographs of Warner's injuries such that the jury could
see them. We note that graphic testimony regarding Warner's injuries was admitted
without objection directly prior to Stern's display of the photographs.
33
point in the trial to say to you: What is it about the meaning of the word 'no' that you do

not understand." Stern responded, "You're sounding like my mother." The transcript

reflects laughter at that point.

In response to a motion for mistrial, the court recognized Stern's conduct during

the first week of trial had been improper, but the court denied the motion. The court

explained, "[N]one of them rise to the level of [a] mistrial and even taken together I don't

think it [comes] close to a mistrial. [¶] But on the other hand I would point out that I

mean jurors are not stupid, and I think when Mr. Stern becomes aggressive, makes

inappropriate remarks, this may not have a very positive effect on his case . . . . I think

having numerous objections sustained, being admonished by the court, making

inappropriate comments about, you know, comparing the defense attorneys to swine, you

know, I mean the jury sees all of this." A week later, the court told Stern he was

"pushing the envelope" by asking questions in violation of in limine rulings.

Stern also improperly suggested that additional evidence of defendants' liability

existed but he was prevented from presenting it to the jury. In his opening statement,

Stern told the jury, "And now you are not going to see all the evidence we have in this

case. That's one of the purposes we spent the last month trying to figure out what's

admissible, what's not admissible." (Italics added.) Stern also told the jury he could not

tell them how much profit Oasis made selling and renting Polar Care devices because of

"pretrial orders." In his closing argument, Stern returned to this theme: "I have been

with this case so long, I feel it's my duty to get every shred of evidence that I know about,

that I've gleaned from the last 14 years to you. [¶] And the court has warned me often,

34
you don't need to get 100 percent in; but, I feel like I've let Whitney and you down, I feel

like maybe you know about 75 or 80 percent of the evidence that I think is relevant. A

lot of people would say the other 20 percent isn't relevant, but, I apologize to you for not

getting that out to you." Defense counsel did not object to these statements at the time.14

Chao filed a motion for new trial arguing, among other grounds, that Stern's

misconduct was prejudicial and required a new trial on liability and damages. Oasis filed

a similar motion. The court denied both motions. At a hearing on the motions, the court

explained its reasoning as follows: "In any event, my overall impression, I'm the trier of

fact, I have been doing this almost 25 years, Mr. Stern is a very aggressive attorney, as

far as assessing cumulative impact I think I'm in a better position to address than any

appellate court because I have been here. I don't think we got close to a mistrial based on

attorney misconduct. [¶] I didn't think he got close. I hope the appellate court listens to

me because I was here watching the entire trial. I've been living with this case for years.

That's my impression." In its minute orders denying the motions, the court stated, "As to

attorney misconduct, the Court disagrees with [the] contention that Plaintiff's counsel's

actions constituted misconduct or prejudiced the outcome of the case. As this Court has

14 Defense counsel did object to a large number of boxes that Stern had with him
during opening statements. The boxes had labels that referenced topics such as punitive
damages. Prior to opening statements, the court told Stern to turn the labels away from
the jury's view. After additional objections, the court told Stern to remove the boxes
from the courtroom. Stern had the boxes placed in the hallway where the jury waited, but
with the labels visible. After still more objections, the court told Stern to move the boxes
to the end of the hallway.
35
previously noted, it was well aware of the actions of counsel. Based on the Court's

personal observations, the argument lacks merit."

B

"The law, like boxing, prohibits hitting below the belt. The basic rule forbids an

attorney to pander to the prejudice, passion or sympathy of the jury." (Martinez v.

Department of Transportation (2015) 238 Cal.App.4th 559, 566 (Martinez).) "The rule

also manifests itself by prohibiting irrelevant ad hominem attacks." (Ibid.) "Personal

attacks on the character or motives of the adverse party, his counsel or his witnesses are

misconduct." (Stone v. Foster (1980) 106 Cal.App.3d 334, 355 (Stone).) Similarly,

repeated violations of pretrial in limine rulings, despite sustained objections, is

misconduct. (Martinez, supra, 238 Cal.App.4th at p. 567.)

As the foregoing discussion demonstrates, there were several incidents of

misconduct during trial. Stern insulted opposing counsel, ignored in limine rulings and

admonishments from the court, persisted in asking objectionable questions despite

sustained objections, and improperly suggested that additional evidence of defendants'

liability existed (blaming the court for his inability to offer it at trial). On appeal, except

for the photographs of Warner that Stern allegedly displayed, Bigler-Engler does not

address the specific instances of misconduct or justify Stern's behavior. (Stern is

cocounsel for Bigler-Engler in this appeal.)

Although Stern committed misconduct, in some cases Chao and Oasis did not

preserve the error for review. "[T]o preserve for appeal an instance of misconduct of

counsel in the presence of the jury, an objection must have been lodged at trial and the

36
party must also have moved for a mistrial or sought a curative admonition unless the

misconduct was so persistent that an admonition would have been inadequate to cure the

resulting prejudice. [Citation.] This is so because '[o]ne of the primary purposes of

admonition at the beginning of an improper course of argument is to avoid repetition of

the remarks and thus obviate the necessity of a new trial.' " (Garcia v. ConMed Corp.

(2012) 204 Cal.App.4th 144, 148 (Garcia).) Raising the issue for the first time in a

posttrial motion is insufficient because the trial court has no ability to correct the

misconduct at that point. (See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757,

797 (Grimshaw).) Here, Chao and Oasis have failed to preserve at least their objections

based on Stern's opening and closing statements because they did not contemporaneously

object.

With this forfeiture in mind, we turn to the question of prejudice. "[I]t is not

enough for a party to show attorney misconduct. In order to justify a new trial, the party

must demonstrate that the misconduct was prejudicial. [Citation.] As to this issue, the

reviewing court makes 'an independent determination as to whether the error was

prejudicial.' [Citation.] It 'must determine whether it is reasonably probable [that the

appellant] would have achieved a more favorable result in the absence of that portion of

[attorney conduct] now challenged.' [Citation.] It must examine 'the entire case,

including the evidence adduced, the instructions delivered to the jury, and the entirety of

37
[counsel's] argument,' in determining whether misconduct occurred and whether it was

sufficiently egregious to cause prejudice." (Garcia, supra, 204 Cal.App.4th at p. 149.)15

In determining prejudice, we evaluate the following factors: "(1) the nature and

seriousness of the misconduct; (2) the general atmosphere, including the judge's control

of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of

objections or admonitions under all the circumstances." (Martinez, supra, 238

Cal.App.4th at p. 568; see Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 320-

321.)

Considering Stern's misconduct in light of these factors and the entire record, we

conclude it was not prejudicial. This case was hotly contested, with all parties

represented by capable, experienced counsel. Although defendants' liability was not a

foregone conclusion (as evidenced by the jury rejecting some of Engler's claims), the

15 Bigler-Engler contends we should review the trial court's determination that Chao
and Oasis were not prejudiced for abuse of discretion. Bigler-Engler relies on criminal
cases reviewing a trial court's denial of a mistrial, but the cases cited do not involve
attorney misconduct. (See People v. Valdez (2004) 32 Cal.4th 73, 128; People v. Bolden
(2002) 29 Cal.4th 515, 555.) The Supreme Court has held that the appropriate standard
of review for a trial court's denial of a motion for new trial based on attorney misconduct
is de novo, at least on the issue of prejudice. (Los Angeles v. Decker (1977) 18 Cal.3d
860, 872 (Decker) ["In our review of such order denying a new trial, as distinguished
from an order granting a new trial, we must fulfill our obligation of reviewing the entire
record, including the evidence, so as to make an independent determination as to whether
the error was prejudicial."].) Although a number of earlier cases emphasized that
appellate courts must defer to the trial court's finding of no prejudice (see, e.g., Stevens v.
Parke, Davis & Co. (1973) 9 Cal.3d 51, 72; Cope v. Davidson (1947) 30 Cal.2d 193, 203;
Walling v. Kimball (1941) 17 Cal.2d 364, 369), the Supreme Court's more recent decision
in Decker is determinative here and has been followed by other Courts of Appeal in
recent cases. (See, e.g., Martinez, supra, 238 Cal.App.4th at p. 568; Garcia, supra, 204
Cal.App.4th at p. 149; but see Grimshaw, supra, 119 Cal.App.3d at p. 794 [post-Decker
case applying deferential standard].)
38
evidence supporting several of Engler's claims was strong. Thus, while Stern's

misconduct was serious, it was neither so pervasive nor so egregious that it prevented the

jury from rationally considering the evidence admitted at trial. The fact that the jury

returned a mixed verdict supports this conclusion.

Stern's offer to test the Polar Care devices on defense counsel was an ill-

considered attempt at lawyer humor. Stern's suggestion that a defense attorney place a

Band-Aid over her mouth was inappropriate and demeaning, but the jury likely saw that

Stern was in the wrong. The disrespect Stern showed to the court in repeatedly "pushing

the envelope" is particularly concerning. Although the record reflects the court was in

command of the proceedings, it permitted a certain level of informality, which Stern

often exploited. While such informality can create a risk of misconduct such as that

which occurred here, the court did not hesitate to admonish Stern on several occasions in

the jury's presence.16

Stern's violations of pretrial in limine orders were relatively minor in the context

of the lengthy, contentious trial. Most examples of the improper material suggested by

Stern were simply variations on, or more detailed descriptions of, evidence that was

already properly admitted. Other examples, such as the naming of Oasis's founder, were

fleeting and likely went unnoticed by the jury. Still other examples appear to have

16 We believe Stern's comments in his opening and closing statements that other
evidence of defendants' liability existed but he was prevented from offering it at trial to
be the most serious example of counsel's disrespect for the courts. Although Chao and
Oasis did not preserve this issue for appeal, we consider it sufficiently egregious to merit
comment again here.

39
prompted the court to reconsider its in limine orders and admit the evidence in question.

While Stern's decision to ask a question in violation of such orders is misconduct, the

court's decision to change its in limine order (which it may properly do) makes any

prejudice stemming from the misconduct negligible.17 Similarly, Stern's practice of

drawing repeated objections and making speaking objections does not appear, on this

record, to have prejudiced the jury, and we note that both sides engaged in speaking

objections and rebuttals in front of the jury.

Our review of the record, moreover, shows that the defendants were successful in

objecting to most of Stern's misconduct. The court sustained numerous objections and

admonished Stern in front of the jury. While Stern sometimes flouted the court's

directions, this isolated disobedience was insubstantial when the misconduct is compared

to the overall sweep of the six-week trial. It did not undermine the court's authority in the

eyes of the jury or cause the jury to disobey the court's instructions.

Additionally, the court's instructions addressed many of the potential sources of

prejudice. For example, the court instructed the jury that it must base its verdict on the

facts admitted at trial and not let bias, sympathy, or prejudice influence its decision. The

court instructed the jury that the statements and questions of attorneys are not evidence

17 Oasis's claim that prejudice can be shown by the court's order denying its motion
for judgment notwithstanding the verdict is therefore unpersuasive. Oasis points to
evidence cited by the court in its order that Oasis contends was excluded by pretrial in
limine orders. But the court could properly determine, during trial, that the evidence
should be admitted notwithstanding its in limine orders. The mere fact that the court
relied on such evidence therefore does not establish prejudice under the circumstances
here.
40
and any question to which an objection was sustained should be disregarded. While such

instructions may not be adequate to cure the prejudice caused by attorney misconduct in

all cases, these instructions, along with the fact the jury rejected some of Engler's claims,

support our conclusion that Chao and Oasis were not prejudiced on the record here.

Given the strength of the evidence as to certain claims (several of which are not

challenged on appeal), the length of the trial, the numerous other contested issues

confronting the jury, and taking into account the trial court's observations about the

nature of the proceedings, the misconduct identified by Chao and Oasis does not appear

in and of itself to have actually prejudiced the jury. Chao and Oasis have not shown it is

reasonably probable they would have achieved a more favorable result on liability in the

absence of Stern's misconduct.18

Although we conclude Chao and Oasis have not shown prejudice here, Stern's

conduct was improper. Such conduct not only falls below professional standards, it

unnecessarily places the client at risk. " '[P]unishment of counsel to the detriment of his

client is not the function of the court. [Citation.] Intemperate and unprofessional conduct

by counsel . . . runs a grave and unjustifiable risk of sacrificing an otherwise sound case

for recovery, and as such is a disservice to a litigant.' " (Neumann v. Bishop (1976) 59

Cal.App.3d 451, 489 (Neumann).) We expect more from our attorneys; in another

context reversal may well have been warranted.

18 We will consider whether the misconduct, combined with other facts, requires
reversal of the jury's damage award in the next part, post.
41
 III. Damages

A. Excessive Compensatory Damages

Breg, Chao, and Oasis argue the jury's award of $5,127,950 in noneconomic

compensatory damages was excessive. We agree. Although the trial court denied

defendants' motions for a new trial on this ground, for reasons we will explain we

conclude the jury's noneconomic compensatory damages award is excessive, is not

supported by the evidence, and appears to be the result of passion and prejudice. For

reasons we will explain, and as a matter of judicial economy, we will exercise our

authority to reverse the jury's noneconomic compensatory damages award and remit the

award to the maximum amount supported by the current record, conditioned on Bigler-

Engler's acceptance of the reduced amount. If Bigler-Engler does not accept the reduced

amount, the trial court should conduct a new trial on that issue. We will consider the

effect of this conclusion on the jury's punitive damage award in the next section, post.

"The amount of damages is a fact question, first committed to the discretion of the

jury and next to the discretion of the trial judge on a motion for new trial. They see and

hear the witnesses and frequently, as in this case, see the injury and the impairment that

has resulted therefrom. As a result, all presumptions are in favor of the decision of the

trial court [citation]. The power of the appellate court differs materially from that of the

trial court in passing on this question. An appellate court can interfere on the ground that

the judgment is excessive only on the ground that the verdict is so large that, at first

blush, it shocks the conscience and suggests passion, prejudice or corruption on the part

of the jury." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507

42
(Seffert).) " 'The question is not what this court would have awarded as the trier of fact,

but whether this court can say that the award is so high as to suggest passion or

prejudice.' " (Id. at p. 507.)

"In making this assessment, the court may consider, in addition to the amount of

the award, indications in the record that the fact finder was influenced by improper

considerations." (Don v. Cruz (1982) 131 Cal.App.3d 695, 707.) The relevant

considerations include inflammatory evidence, misleading jury instructions, improper

argument by counsel, or other misconduct. (Rufo v. Simpson (2001) 86 Cal.App.4th 573,

615 (Rufo); Neumann, supra, 59 Cal.App.3d at p. 469 ["to evaluate the defendant's claim

that the judgment . . . is so excessive as to shock the conscience and give rise to a

presumption that it was the result of passion and prejudice . . . , it is necessary to review

the record on the question of the plaintiff's counsel's contribution to such a result"].)

"There are no fixed or absolute standards by which an appellate court can measure

in monetary terms the extent of the damages suffered by a plaintiff as a result of the

wrongful act of the defendant. The duty of an appellate court is to uphold the jury and

trial judge whenever possible. [Citation.] The amount to be awarded is 'a matter on

which there legitimately may be a wide difference of opinion' [citation]." (Seffert, supra,

56 Cal.2d at p. 508.) The difficulty inherent in assessing damages is plainly evident

when noneconomic damages such as pain and suffering are at issue: " 'One of the most

difficult tasks imposed upon a jury in deciding a case involving personal injuries is to

determine the amount of money the plaintiff is to be awarded as compensation for pain

and suffering. No method is available to the jury by which it can objectively evaluate

43
such damages, and no witness may express his subjective opinion on the matter.

[Citation.] In a very real sense, the jury is asked to evaluate in terms of money a

determent for which monetary compensation cannot be ascertained with any

demonstrable accuracy.' " (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764

(Loth); see Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 896 ["even in

the absence of any explicit evidence showing pain, the jury may infer such pain, if the

injury is such that the jury in its common experience knows it is normally accompanied

by pain"].) Moreover, "[n]oneconomic damages do not consist of only emotional distress

and pain and suffering. They also consist of such items as invasion of a person's bodily

integrity (i.e., the fact of the injury itself), disfigurement, disability, impaired enjoyment

of life, susceptibility to future harm or injury, and a shortened life expectancy." (Buell-

Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, 549 (Buell-Wilson), judgment

vacated on other grounds sub. nom. Ford Motor Co. v. Buell-Wilson (2007) 550 U.S.

931.)

We review the jury's damages award for substantial evidence, giving due

deference to the jury's verdict and the trial court's denial of the new trial motion.

(Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720; Rufo, supra, 86

Cal.App.4th at p. 614.) "In considering the contention that the damages are excessive the

appellate court must determine every conflict in the evidence in respondent's favor, and

must give him the benefit of every inference reasonably to be drawn from the record

[citation]." (Seffert, supra, 56 Cal.2d at p. 508.)

44
 We begin with the jury's verdict. The jury awarded Engler approximately $44,270

in past economic damages and $24,000 in future economic damages, for a total of

approximately $68,270. (These damages are not challenged on appeal and are fully

supported by the evidence.) For past noneconomic damages, the jury awarded Engler

$3,000,000. For future noneconomic damages, the jury awarded Engler $2,127,950.

The record contains ample evidence that Engler's use of the Polar Care 500 caused

her to suffer an NFCI on her knee, which initially manifested itself as painful swelling,

followed by blisters of increasing size, and finally a large black area of necrotic tissue

covering a portion of her knee. During this time, Engler experienced periods of

substantial pain (including when Engler felt like her knee "was going to explode") and

anxiety.

Engler was admitted to the hospital, underwent surgery to treat the necrosis, and

spent one week there. The surgery left a large open wound which required daily

treatment. Engler underwent nine additional procedures, under local anesthetic, to clean

and close the wound. These additional procedures were very painful. After the wound

healed, it left a large scar on her knee, approximately four inches by three inches in size.

Engler was highly distressed by the appearance of her scar and the fact her classmates

and boyfriend teased her about it.

To improve the appearance of the scar, Engler had two scar reduction surgeries.

She was required to immobilize her knee for six weeks after each surgery, thus seriously

disrupting everyday activities. Engler felt guilty about having the surgeries because her

father was unemployed and they did not have health insurance. Two additional scar

45
reduction surgeries, again followed by six weeks of immobilization for each, were

recommended. Because these procedures would interrupt her busy school obligations,

Engler chose to defer these surgeries.

By the time of trial, Engler's scar was substantially smaller. The area surrounding

the scar was still hypersensitive and painful to the touch, and she experienced weakness

and pain when kneeling. When asked to describe the impact on her daily routine, Engler

said she rode horses, but she was now unable to ride competitively. Similarly, Engler

could ride her bike, but she had difficulty riding while holding her dog's leash. She also

had difficulty dancing to hip-hop music. Engler acknowledged that otherwise she was in

good mental and physical health.

Engler's counsel requested the jury award $1,000 per day in noneconomic

damages for the 90-day period from Engler's first surgery through the completion of her

debridement procedures ($90,000), when she was in substantial pain, and $500 per day

for the two six-week periods after Engler's scar revision surgeries ($42,000). He did not

suggest a daily or cumulative dollar figure for pain and suffering during the almost nine

years between Engler's recovery from her second scar surgery and trial. For future

noneconomic damages, Engler's counsel suggested $50 to $150 per day for the rest of

Engler's expected lifespan. Based on actuarial tables indicating Engler had a remaining

life expectancy of 58 years, this translated into a request of approximately $1,063,975 to

$3,191,925.

In the end, the jury awarded $3,000,000 in past noneconomic damages, or about

$900 per day, and $2,127,950 in future economic damages or about $100 per day. In

46
determining whether these awards are legally excessive, the key question is whether the

award was so high as to shock the conscience and suggest the jury was influenced by

improper considerations. We conclude it was.

We start with the recognition Engler suffered a serious injury. Initially, the pain

was persistent, substantial, and at times felt as if her "knee was going to explode." The

debridement procedures and surgeries were extremely painful, the resulting scar

disfiguring, and her daily activities highly compromised. Understandably, these

circumstances caused considerable emotional distress, anxiety and embarrassment. For

this approximately six-month period, Engler's counsel requested $1,000 per day for the

90 days and $500 per day for the two six-week periods following surgery. The evidence

fully justified an award at this level, totaling $132,000.

But as to the remainder of the jury's $3 million award for past noneconomic

damages, the award is excessive and unsupported by the evidence. In the nearly nine

years between Engler's last medical procedure and the time of trial, Engler's condition

improved steadily and dramatically. By the time of trial, her pain was at a low level,

intermittent, and confined to the area around her scar; her daily activities had returned to

normal with the exception of minor physical limitations associated with specific

recreational activities; her scar was small and far less noticeable;19 and her anxiety and

stress were substantially reduced.

19 Engler displayed her knee to the jury, but there are no photographs or trial
testimony describing the details of the condition of the scar at the time of trial.
47
 Yet, despite her consistent improvement and excellent recovery, and assuming the

jury adopted counsel's suggestion to compensate Engler on a daily basis, the $3 million

figure reflects the jury awarded nearly equivalent amounts per day whether Engler was

suffering extreme pain, disfigurement, and serious interruption of daily activities versus

minimal physical discomfort, intermittent curtailment of daily activities, and some

anxiety over the condition of her scar. Alternatively, if the jury used a different approach

and front loaded the damages, such an award is grossly disproportionate to the actual

noneconomic damages Engler suffered in the first three to four years after surgery.

Based on similar reasoning, we find the jury's award in excess of $2 million for

future noneconomic damages (approximately $100 per day for 58 years) legally

excessive. Except for the option of undergoing future scar reduction surgery, Engler was

doing well physically and mentally. There was no suggestion of the prospect of suffering

a significant future disability, shortened life expectancy, inability to succeed

professionally, or a distrust of doctors or other fiduciary advisors. On this record,

therefore, the jury's total $5.1 million award is excessive, strongly suggesting the jury

was influenced by improper factors.

Although our analysis rests primarily on the facts and circumstances of this case,

our review of cases involving awards of the magnitude awarded here further supports our

conclusion Engler's damages award shocks the conscience. (See Daggett v. Atchison,

Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666.) For example, in Ford v.

Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 765, where the jury awarded

$3,262,500 in noneconomic damages, the plaintiff suffered massive injuries after falling

48
off a personal watercraft or "jet ski." The court described plaintiff's injuries as follows:

"[Plaintiff] sustained a severe hernial and rectal injury. Her internal bleeding required

multiple transfusions. Two surgeries were required to prepare and establish a colostomy.

Medical records indicate she also required 'massive resuscitation . . . from her initial

operation.' [¶] [Plaintiff] was in the hospital for 10 days, followed by a five-day

postoperative stay at North Bay Medical Center. [¶] [Plaintiff] has no control over her

bowels. . . . [¶] The injuries also created urological complications such that Susan must

self-catheterize in order to urinate. As well, [plaintiff] is numb from her right kneecap to

her waist; her buttocks and pelvic area are also numb." (Id. at pp. 759-760.) Plaintiff

could no longer engage in normal activities such as softball and dancing, her sex life

suffered, and she was unable to continue to work. (Id. at p. 760.) The contrast with

Engler's injuries is evident; yet, Engler was awarded approximately $1.8 million more in

noneconomic damages than this plaintiff.

Similar comparisons can be made where other plaintiffs suffered horrific injuries.

(See, e.g., Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 874 [jury

award of $3,500,000 in noneconomic damages reduced to $2,250,000 by the trial court;

plaintiff suffered "a fractured jaw, extensive facial laceration, cerebral bleeding (which

was resolved prior to discharge from the hospital), multiple fractures of the face near the

nose with mouth displacement, swelling of the sinuses at the front of head and base of the

skull, a punctured lung, and soft tissue swelling of the throat which required a

tracheostomy," which led to severe brain injury and permanent partial disability].)

49
 Bigler-Engler argues that a jury verdict in another case involving Breg brought by

John Dade Thieriot shows the jury's verdict here was not excessive. The argument is

unpersuasive. In that case, a jury awarded Thieriot $3,800,000 in noneconomic damages

after he used the Polar Care device on both knees and was injured. (Thieriot v. Breg, Inc.

(Super. Ct. S.F. City and County, 2006, No. CGC 04-431658).) (The jury's total verdict,

including economic damages, was $4,165,509.) After the jury's verdict, Breg agreed to

pay Thieriot $4,100,000 on the condition that the jury's verdict be vacated.

As an initial matter, we do not have a record of the evidence admitted at Thieriot's

trial, thus undermining its value for comparative purposes, and, of particular import, the

award was not tested on appeal. Moreover, Thieriot's economic damages were over

$365,000 compared to Engler's economic damages of a little over $68,000, and Thieriot

suffered injuries to both knees, not one. Thus, that award has little value in assessing the

disproportionality of Engler's award.

The lack of evidence supporting the jury's award and the disproportionality of the

award shown by the reported cases discussed above suggest the jury failed to base its

award solely on the evidence and was influenced by improper factors. Our detailed

review of the record confirms this conclusion. As we have already described, Engler's

counsel asked questions about impermissible or excluded matters, suggesting to the jury

that they were not hearing all of the relevant evidence, and made comments denigrating

the court and defense counsel. (See part II, ante.) Key portions of Stern's opening

statement and closing argument, as well as witness examinations, concerned injuries

suffered by individuals other than Engler. Warner, for example, figured prominently in

50
Stern's arguments and questions. Although the fact of his injury, and some details, were

properly admitted (see part I. D, ante), the focus on Warner and other injured individuals

(and their separate lawsuits) appears to have distracted the jury from the specific injuries

at issue in this case. Stern also emphasized Breg's 139 incident reports, leaving the

impression that every incident report reflected an injury attributable to defects in Breg's

Polar Care device, when, in fact, this conclusion was not supported by the evidence.

Stern's focus on other injuries appears to have improperly influenced the jury, leading it

to award damages taking into account injuries other than Engler's. (See Loth, supra, 60

Cal.App.4th at p. 764.)

In addition, episodes of overheated, emotional rhetoric reinforce our conclusion.

This tenor is reflected by two passages in Stern's closing argument. The first likened

Chao's testimony that he did not want to "play the blame game" to that of a rapist who

says the victim enjoyed the rape: "Now I don't know if it struck you this way but to me it

was kind of like after [Chao] got on the stand and said, I'm not going to play the blame

game, it was almost like the perpetrator in a rape saying, she liked it. That is why it

happened, she liked it. I found it very disturbing." The second argued that Breg's Polar

Care device had "branded" at least 139 people like livestock or slaves: "But I thought the

second definition was more applicable here. It says an identifying mark burned on

livestock, criminals or slaves with a branding iron. Now think about that. Breg in their

unconscionable marketing and irresponsible marketing of this product they have left, and

we know at least 139 people, they've branded with their product." While counsel are

51
entitled to wide latitude to argue their case, arguments such as these had the potential to

inflame the jury. Based on the jury's verdict, we conclude they did so.

Although we have attributed some of counsel's conduct as contributing to the

jury's award of excessive damages, we are confident this did not deprive the defendants

of a fair trial on liability. The products liability, breach of fiduciary duty, and medical

malpractice claims were based on solid, convincing evidence. The fact the jury did not

find in favor of Engler on all of her claims reinforces our conclusion the jury discharged

its liability findings based solely on the evidence and instructions.20

For the foregoing reasons, and based on our collective experience, we conclude

the jury's award of noneconomic damages was excessive, not supported by the evidence,

and motivated by passion or prejudice. Because the record in this matter is sufficiently

definite to determine the proper amount of noneconomic damages and we are confident

the liability findings are sound, we will exercise our power to remit the award to avoid

further delay. (See, e.g., Buell-Wilson, supra, 141 Cal.App.4th at p. 555.) The facts

underlying this case started with Engler's surgery in 2003, and the complaint was filed in

2006. After years of contentious litigation and a hard-fought, eight-week trial presided

over by an experienced judge, the jury rendered its verdict in 2012, and this appeal

followed in 2013. Now that more than a decade has passed since Engler's surgery, and in

20 Chao suggests that the jury's damages award shows that the jury's liability verdict
should be reversed as well. We disagree. Chao has not cited any authority supporting his
contention that a new trial on liability is required when damages are found excessive. We
have addressed the specific errors urged by Chao elsewhere in this opinion. They do not
justify a general new trial on all liability issues. (See Buell-Wilson, supra, 141
Cal.App.4th at p. 555, fn. 9.)
52
the interests of justice and judicial economy, bringing closure to this matter is

appropriate.

At the time of Engler's knee surgery in May 2003, she was an energetic, self-

confident and highly motivated young woman whose physical and emotional well-being

were dramatically impacted by the injuries caused by the Polar Care device. As the

evidence clearly shows, after the first six months, her condition steadily improved and

her stress subsided. At trial, nine years after surgery, her scar was still visible, but she

described only minimal physical discomfort and limitations and referenced little, if any,

emotional distress. In short, she had an excellent recovery, such that her life, with minor

inconveniences, had largely returned to normal by 2012. Taking into account all of these

factors and her life expectancy of 58 years at trial, we set the total noneconomic damages

at $1,300,000, reflecting $650,000 for past noneconomic damages and $650,000 for

future noneconomic damages.

The award for past noneconomic damages includes Engler's request at trial for

$1,000 per day for the 90 days after Engler's initial surgery and $500 per day for the two

six-week periods after her scar revision surgeries, for an amount of $132,000. Although

Engler did not specifically request noneconomic damages for the other periods leading up

to trial, we conclude the evidence supports an award of approximately $150 per day for

this period (the high end of what Engler requested for future noneconomic damages), for

an amount of $518,000. At the beginning of the period, the evidence shows that Engler's

damages were more than $150 per day, while at the end they were less, leading to a

53
blended rate of approximately $150. Taken together, the figures total $650,000 in past

noneconomic damages, which is the maximum Engler could have received on this record.

We further conclude an equal amount, $650,000, is appropriate for Engler's future

noneconomic damages. This amount is somewhat more than half of the low end of the

range Engler requested at trial. While the lasting effects of Engler's injuries at the time of

trial were relatively minor, the evidence supports the inference that Engler would have

suffered these effects for the rest of her life. Engler would also have lived with the

memory of her pain and trauma at the hands of a trusted professional. Given this

evidence, an award of $650,000 is the maximum Engler could have received on this

record.

The jury's noneconomic compensatory damages award is therefore reversed and

remitted to $1,300,000, conditioned on Bigler-Engler's acceptance of this reduced

amount. If Bigler-Engler does not accept the reduced amount, the trial court should

conduct a new trial on this issue.

B. Punitive Damages

Chao contends the jury's punitive damages award against him must be reversed

because it violates federal due process principles and is excessive under California law.21

Although we have concluded that the jury's noneconomic compensatory damages award

21 Breg challenges the jury's punitive damages award against it on similar grounds.
However, for reasons we will explain, we conclude the jury's verdict against Breg on
Engler's claim for intentional concealment must be reversed. Because the jury made the
requisite findings of malice, oppression, or fraud against Breg with respect to this claim
only, its reversal compels the reversal of the jury's punitive damages award as to Breg as
well. (See part IV. A., post.)
54
must be reduced, this conclusion does not automatically lead to the further conclusion

that the jury's punitive damages award must be reduced. (Behr v. Redmond (2011) 193

Cal.App.4th 517, 536-537; see Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962,

984.) Although a reduction in compensatory damages may make a punitive damages

award more vulnerable to attack (e.g., because the resulting ratio between punitive and

compensatory damages is too high), the jury's punitive damages award must be assessed

separately according to applicable standards.

In the punitive damages phase of trial, Engler presented evidence that the

cumulative net profits from Oasis's Polar Care business from 1992 to 2003 was at least

$604,262 based on Oasis's financial statements. Chao did not work for Oasis at the

beginning of that period, and other doctors shared in Oasis's profits even after Chao

joined. The parties stipulated that Chao's net worth was $3,411,547. An expert witness

examined Chao's tax returns and found that Chao had an adjusted gross income of

$620,069 in 2009 and $750,726 in 2010. Although the relevant documents were not yet

final, based on the available information for 2011 the expert testified that Chao's adjusted

gross income for 2011 would be $759,482. In 2011, Chao or his wholly-owned entities

also received $1,400,928 in distributions from businesses Chao owned or had an interest

in. The witness did not have information on Chao's income for the then-current year,

2012, or forecasts for any future years. An Oasis administrator testified that Oasis was

not profitable, and Chao (as its owner) had to contribute money to help Oasis pay its

expenses. The jury awarded $500,000 in punitive damages against Chao, by a vote of 10

to two.

55
 "Our Supreme Court has summarized the fundamental principles of punitive

damages under California law. The purposes of punitive damages are to punish the

defendant and deter the commission of similar acts. [Citations.] Three primary

considerations govern the amount of punitive damages: (1) the reprehensibility of the

defendant's conduct; (2) the injury suffered by the victims; and (3) the wealth of the

defendant." (Rufo, supra, 86 Cal.App.4th at pp. 619-620.)

"Because the quintessence of punitive damages is to deter future misconduct by

the defendant, the key question before the reviewing court is whether the amount of

damages 'exceeds the level necessary to properly punish and deter.' [Citations.] The

question cannot be answered in the abstract. The reviewing court must consider the

amount of the award in light of the relevant facts. The nature of the inquiry is a

comparative one. Deciding in the abstract whether an award is 'excessive' is like deciding

whether it is 'bigger,' without asking 'Bigger than what?' " (Adams v. Murakami (1991)

54 Cal.3d 105, 110 (Adams).)

"Even if an award is entirely reasonable in light of the other two factors . . . , the

award can be so disproportionate to the defendant's ability to pay that the award is

excessive for that reason alone." (Adams, supra, 54 Cal.3d at p. 111.) Evidence of a

defendant's financial condition and ability to pay any award is therefore crucial in

determining whether a punitive damages award is excessive. (Id. at p. 110; Rufo, supra,

86 Cal.App.4th at p. 620.) "[O]bviously, the function of deterrence [citation], will not be

served if the wealth of the defendant allows him to absorb the award with little or no

discomfort. [Citations.] By the same token, of course, the function of punitive damages

56
is not served by an award which, in light of the defendant's wealth and the gravity of the

particular act, exceeds the level necessary to properly punish and deter." (Neal v.

Farmers Insurance Exchange (1978) 21 Cal.3d 910, 928.)

"Punitive damages constitute a windfall. [Citation.] Such awards generally are

not allowed to exceed 10 percent of the net worth of the defendant." (Michelson v.

Hamada (1994) 29 Cal.App.4th 1566, 1596; see Storage Services v. Oosterbaan (1989)

214 Cal.App.3d 498, 515 (Storage Services) ["[P]unitive damage awards are generally

not allowed to exceed 10 percent of the defendant's net worth, and . . . significantly lower

percentages are indeed the norm."].)

Here, the parties stipulated that Chao's net worth was $3,411,547. The jury's

award of $500,000 in punitive damages, about 14 percent of Chao's net worth, exceeds

the 10 percent threshold. For this reason alone, the jury's award is suspect. "Where, as

here, the award represents a disproportionate share of the defendant's net worth, it is

presumptively the result of passion and prejudice and cannot be sustained." (Storage

Services, supra, 214 Cal.App.3d at p. 516.)

Bigler-Engler claims, "Given Chao's utter lack of credibility in other respects, the

jury was also free to reject his claims regarding his alleged 'net worth.' " But Chao's net

worth was the subject of the parties' stipulation. The jury was not free to disregard it.

(Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141-142 ["Unless the trial court, in

its discretion, permits a party to withdraw from a stipulation [citations], it is conclusive

upon the parties, and the truth of the facts contained therein cannot be contradicted."].)

57
 Bigler-Engler points out that net worth may be supplemented by other financial

information when a reviewing court considered a defendant's ability to pay. (See Rufo,

supra, 86 Cal.App.4th at p. 621 ["[A]lthough net worth is the most common measure of

wealth used in assessing punitive damages, it is not the exclusive measure."].) Bigler-

Engler contends evidence of Chao's income and business distributions shows he is able to

pay the jury's punitive damage award. We disagree. The jury's punitive damages award

amounts to the bulk of Chao's normal income in the years before the verdict, and the

available evidence showed that his income in future years was likely to decrease. Given

these facts, the jury's punitive damages award remains suspect. "[T]he purpose of

punitive damages is not served by financially destroying a defendant. The purpose is to

deter, not to destroy." (Adams, supra, 54 Cal.3d at p. 112.)

The remaining two factors are the reprehensibility of the defendant's conduct and

the injury suffered by the victim. (Rufo, supra, 86 Cal.App.4th at p. 620.) Viewing

Chao's actions against the range of possible tortious acts justifying punitive damages, we

conclude Chao's actions fall in the lower range of reprehensibility. Distilled to their

essence, the facts show that Chao overprescribed the Polar Care device, without adequate

warnings of potential harm or disclosures regarding his financial interest, in order to

increase his profits. While this conduct certainly justified the imposition of punitive

damages, it was not particularly reprehensible. Chao did not intend to harm Engler and,

except for Warner, he had successfully treated hundreds of clients with the Polar Care

device without incident. Compared with more intentional harm, and more recklessly

harmful acts, Chao's actions were much less egregious. Similarly, while Engler suffered

58
significant physical and emotional harm, this harm too is in the low range of the potential

harm an individual can suffer. As we have already discussed, the lasting effects of her

injury were relatively minor and did not significantly impact her life. The remaining two

factors therefore suggest that the maximum punitive damages award supported by the

record will be comparatively small.22

Taking these three factors into account, we conclude the jury's punitive damages

award was excessive as a matter of California law. The $500,000 award strains Chao's

ability to pay based on the evidence presented at trial, and it is not justified by the

relatively low reprehensibility of his acts or the relatively small harm to Engler. While

the award is less than the amount we have determined to be Engler's maximum

supportable compensatory damages, it is still excessive in light of the relevant factors.

"Although the award represented only a fraction of the compensatory damages, 'the

function of punitive damages is not served by an award which, in light of the defendant's

wealth and the gravity of the particular act, exceeds the level necessary to properly

punish and deter.' " (Storage Services, supra, 214 Cal.App.3d at p. 515.)

22 A comparison with Rufo, supra, 86 Cal.App.4th 573, is illustrative. In that case, a
civil suit arising out of the notorious 1994 murders of Nicole Brown Simpson and Ronald
Goldman, a jury found O.J. Simpson liable for their intentional deaths and awarded $25
million in punitive damages. (Id. at p. 581.) Rufo explained, "In this case the first two
factors, the reprehensibility of the defendant's conduct and the severity of harm to the
victims, have the greatest weight legally possible. In effect the jury found that Simpson
committed two deliberate, vicious murders. This is the most reprehensible conduct that
society condemns and is ordinarily punished under California criminal law by a sentence
of death or life imprisonment without possibility of parole. [Citations.] The harm
suffered by the victims was the maximum possible; they were intentionally killed." (Id.
at pp. 623-624.)
59
 Although we would normally reverse the jury's award and remand for a new trial

on that issue, we believe the interests of justice are better served by a remittitur for the

reasons we have already discussed in connection with Engler's noneconomic

compensatory damages. Based on our review of the record, and in our collective

experience, the maximum award of punitive damages supportable by the record is

$150,000, or approximately half of the customary 10 percent net worth threshold. This

amount does not exceed Chao's ability to pay and adequately serves the purpose of

punishing Chao and deterring him from similar conduct in the future.

We have considered Chao's contention that the jury's award is also excessive

under the due process clause of the federal Constitution. (State Farm Mut. Auto. Ins. Co.

v. Campbell (2003) 538 U.S. 408, 417-418; Roby v. McKesson Corp. (2009) 47 Cal.4th

686, 712.) Even if we were to agree with this contention as well, our analysis under the

federal due process clause would not result in a remittitur below $150,000. We therefore

need not consider this contention.

We will therefore reverse and remit the jury's punitive damages award to

$150,000, conditioned on Bigler-Engler's acceptance of the reduced amount. If Bigler-

Engler does not accept the reduced amount, the trial court should conduct a new trial on

that issue.23

23 If Bigler-Engler does not accept the reduced amount of noneconomic
compensatory damages, and the trial court must hold a new trial on that issue, it must
hold a new trial on the issue of punitive damages as well. (Liodas v. Sahadi (1977) 19
Cal.3d 278, 284.)

60
 IV. Sufficiency of the Evidence

A. Intentional Concealment Against Breg

Breg contends the evidence does not support the jury's verdict on Engler's claim

for intentional concealment.24 "[T]he elements of a cause of action for fraud based on

concealment are: ' "(1) the defendant must have concealed or suppressed a material fact,

(2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the

defendant must have intentionally concealed or suppressed the fact with the intent to

defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not

have acted as he did if he had known of the concealed or suppressed fact, and (5) as a

result of the concealment or suppression of the fact, the plaintiff must have sustained

damage.". . . '. . . ." (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178

Cal.App.4th 830, 850 (Kaldenbach).)

Based on the evidence presented at trial, Breg argues the second element above, a

duty to disclose, is absent here because there was no transactional relationship between

24 The various species of fraud are sometimes difficult to separate. To frame our
discussion, we reproduce the findings of the jury in its special verdict form on this claim.
The jury answered each of the following questions in the affirmative as to Breg: (1) "Did
[Breg] intentionally fail to disclose an important fact that Whitney Engler did not know
and could not reasonably have discovered?" (2) "Did [Breg] intend to deceive Whitney
Engler by concealing the important fact?" (3) "Did Whitney Engler rely on [Breg's]
deception and was such reliance reasonable under the circumstances?" (4) "Was [Breg's]
concealment a substantial factor in causing harm to Whitney Engler?" (5) "Do you find
by clear and convincing evidence that [Breg] engaged in malice, oppression, or fraud,
when [it] concealed the important fact with intent to deceive?" The jury was also
presented with a claim of intentional misrepresentation. In connection with that claim,
the jury found that Breg did not "make a false representation of an important fact" to
Engler.
61
Engler and Breg. This court examined the circumstances giving rise to a duty to disclose

in LiMandri v. Judkins (1997) 52 Cal.App.4th 326 (LiMandri). In that case, we

explained, "There are 'four circumstances in which nondisclosure or concealment may

constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the

plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to

the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff;

and (4) when the defendant makes partial representations but also suppresses some

material facts.' " (Id. at p. 336.) Where, as here, a fiduciary relationship does not exist

between the parties, only the latter three circumstances may apply. These three

circumstances, however, "presuppose[] the existence of some other relationship between

the plaintiff and defendant in which a duty to disclose can arise." (Id. at pp. 336-337.)

"A duty to disclose facts arises only when the parties are in a relationship that gives rise

to the duty, such as ' "seller and buyer, employer and prospective employee, doctor and

patient, or parties entering into any kind of contractual arrangement." ' " (Shin v. Kong

(2000) 80 Cal.App.4th 498, 509.)

Our Supreme Court has described the necessary relationship giving rise to a duty

to disclose as a "transaction" between the plaintiff and defendant: "In transactions which

do not involve fiduciary or confidential relations, a cause of action for non-disclosure of

material facts may arise in at least three instances: (1) the defendant makes

representations but does not disclose facts which materially qualify the facts disclosed, or

which render his disclosure likely to mislead; (2) the facts are known or accessible only

to defendant, and defendant knows they are not known to or reasonably discoverable by

62
the plaintiff; (3) the defendant actively conceals discovery from the plaintiff." (Warner

Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294, italics added, fns.

omitted.) Other cases have described the requisite relationship with the same term. (See,

e.g., Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187 (Hoffman);

LiMandri, supra, 52 Cal.App.4th at p. 337 ["As a matter of common sense, such a

relationship can only come into being as a result of some sort of transaction between the

parties."].) Such a transaction must necessarily arise from direct dealings between the

plaintiff and defendant; it cannot arise between the defendant and the public at large.

By contrast, as Bigler-Engler points out, other doctrines impose liability even

without evidence of a transaction between plaintiff and defendant. Bigler-Engler relies

on the general principle that a manufacturer has a duty to warn consumers of a product's

hazards and faults. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Pannu

v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1316.) Bigler-Engler

argues that this duty applies here as well and the violation of that duty gives rise to a

cause of action for fraud under a theory of concealment. The authorities Bigler-Engler

cites, however, involve strict products liability, not fraud. Bigler-Engler has not provided

any reason to apply this duty to the fraud cause of action here, and we are aware of none.

Products liability law involves a set of circumstances, elements, and doctrines that are

independent from, and not directly applicable to, fraud. The duties underlying each

cannot simply be applied to the other. (Cf. Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th

89, 108 ["[W]e do not agree that a suit based on a theory of negligent or intentional

63
misrepresentation is governed by rules developed under the distinct doctrine of strict

products liability law."].)

Bigler-Engler also points out that "a duty to speak may arise when necessary to

clarify misleading 'half-truths.' " (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th

1640, 1659.) "This is because of the principle that 'where one does speak he must speak

the whole truth to the end that he does not conceal any facts which materially qualify

those stated. [Citation.] One who is asked for or volunteers information must be truthful,

and the telling of a half-truth calculated to deceive is fraud.' " (Pavicich v. Santucci

(2000) 85 Cal.App.4th 382, 398.) As we have explained, however, a duty to disclose

arises in this context only where there is already a sufficient relationship or transaction

between the parties. (Warner Construction Corp. v. City of Los Angeles, supra, 2 Cal.3d

at p. 294; LiMandri, supra, 52 Cal.App.4th at pp. 336-337.) Where, as here, a sufficient

relationship or transaction does not exist, no duty to disclose arises even when the

defendant speaks. (Hoffman, supra, 228 Cal.App.4th at pp. 1191-1192; see Platt

Electrical Supply, Inc. v. EOFF Electrical, Inc. (9th Cir. 2008) 522 F.3d 1049, 1059, fn.

3 [applying California law].)

Bigler-Engler correctly asserts that an affirmative statement may be so misleading

that it may give rise to a fraud cause of action even where the relationship or transaction

would be insufficient to give rise to a generalized duty to disclose. (See Hoffman, supra,

228 Cal.App.4th at p. 1192, fn. 14; see also Goodman v. Kennedy (1976) 18 Cal.3d 335,

347; Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1659.) However, even

viewed in the light most favorable to the jury's verdict, the record does not support the

64
finding that Breg made any such statements here. Breg did not make any statements at

all directly to Engler or her parents. Nor did Engler or her parents receive any statements

directly from Breg. Bigler-Engler points to evidence that the Polar Care device Oasis

supplied had a Breg warning label and instructions. Breg, however, had updated its

warnings for the Polar Care 500 device at least twice since that Polar Care device had

been manufactured. And, as noted, Breg had no knowledge that this Polar Care device

(and its associated outdated warnings and directions) had been provided to Engler.

Even assuming the warnings and directions on Engler's Polar Care 500 device

could be considered affirmative statements to her or her parents, the evidence does not

support the finding that they were so misleading as to give rise to a duty to disclose in the

absence of an otherwise sufficient relationship or transaction. Although Breg did not

specifically warn of the risk or symptoms of an NFCI (and the warnings were therefore

inadequate in the context of products liability, as the jury found), the statements Breg did

make were not "misleading 'half-truths' " that may give rise to liability in fraud. Breg

specifically included the following warning: "WARNING: A LICENSED HEALTH

CARE PRACTITIONER MUST DETERMINE THE CORRECT TEMPERATURE

RANGE FOR EACH PATIENT. PATIENTS VARY IN SENSITIVITY TO COLD. A

PERIODIC CHECK OF THE TEMPERATURE MUST BE MADE AFTER A FLOW

RATE HAS BEEN ESTABLISHED FOR THE PATIENT. CAUTION SHOULD BE

TAKEN DURING PROLONGED USE, FOR CHILDREN, DIABETICS,

INCAPACITATED PATIENTS, AND THOSE WITH DECREASED SKIN

SENSITIVITY OR POOR CIRCULATION."

65
 Likewise, the instructions did not dictate a specific temperature or length of use.

The instructions stated, under the heading of "TEMPERATURE ADJUSTMENT," "Turn

knob as necessary to obtain desired temperature, clockwise for warmer and

counterclockwise for colder. Desired temperature is typically between 45 to 55°F for

continuous use and below 45°F for sessions of 20 minutes or less. However, patient

comfort and the amount of gauze or other padding between the pad and skin will affect

the desired temperature." After those instructions, Breg included another warning:

"CAUTION: A LICENSED HEALTH CARE PRACTITIONER MUST DETERMINE

THE CORRECT TEMPERATURE RANGE FOR EACH PATIENT."

While a reasonable jury could, and in this case did, find these warnings inadequate

for product liability purposes given Breg's knowledge of the risk of NFCI's, these

statements are not "misleading 'half-truths' " that give rise to a duty to disclose in the

absence of an otherwise sufficient relationship or transaction. To hold otherwise would

unduly conflate two distinct areas of law, products liability and fraud, and transform

every instance of inadequate product warning into a potential claim for fraud.

Under the circumstances of this case, therefore, Engler was required to offer

evidence of a relationship between Engler and Breg that was sufficient to give rise to a

duty to disclose. The standard of review for sufficiency of the evidence is well settled:

" '[T]he scope of our review begins and ends with the determination whether, on the

entire record, there is any substantial evidence, contradicted or uncontradicted, which will

support the conclusions reached by the jury. [Citations.] In reviewing the voluminous

record, we must examine all factual matters in the light most favorable to the prevailing

66
parties and resolve all conflicts in support of the judgment. [Citations.] [¶] "Substantial"

evidence, however, is not synonymous with "any" evidence. To constitute sufficient

substantiality to support the verdict, the evidence must be "reasonable in nature, credible,

and of solid value; it must actually be 'substantial' proof of the essentials which the law

requires in a particular case." [Citations.]' [Citation.] 'It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.' " (Kasparian v.

County of Los Angeles (1995) 38 Cal.App.4th 242, 259-260 (Kasparian).)

Viewing the record in the light most favorable to Bigler-Engler, we conclude the

evidence does not support the jury's verdict. An essential element underlying Engler's

claim for intentional concealment, a duty to disclose, is absent here because there was no

evidence of a relationship between Engler (or her parents) and Breg sufficient to give rise

to a duty to disclose. Breg did not transact with Engler or her parents in any way. Engler

obtained her Polar Care device from Oasis, based on a prescription written by Chao, all

without the Breg's involvement. The evidence does not show Breg knew—prior to this

lawsuit—that Engler was a potential user of the Polar Care device, that she was

prescribed the Polar Care device, or that she used the Polar Care device. The evidence

also does not show that Breg directly advertised its products to consumers such as Engler

or that it derived any monetary benefit directly from Engler's individual rental of the

Polar Care device. Indeed, Oasis appears to have obtained the Polar Care device Engler

used from Breg several years before Engler's surgery and maintained the device itself for

rental to its patients. Under these circumstances, there was no relationship between Breg

and Engler (or her parents) sufficient to give rise to a duty to disclose.

67
 Because the evidence does not support the existence of a duty to disclose, the

jury's verdict in Engler's favor on her claim for intentional concealment must be reversed.

Breg contends it is further entitled to judgment in its favor on this claim. "An appellate

court may reverse a judgment with directions to enter a different judgment if it appears

from the record that no new evidence of significance would be presented in a new trial

and there is only one proper judgment." (Singh v. Southland Stone, U.S.A., Inc. (2010)

186 Cal.App.4th 338, 357.) Based on the record and the briefing of the parties, it does

not appear that Bigler-Engler could establish the requisite elements of an intentional

concealment cause of action against Breg if the claim were retried. This cause of action

was the subject of comprehensive discovery and was exhaustively litigated in the trial

court. The evidence adduced is simply insufficient to sustain the cause of action. Entry

of judgment in Breg's favor is therefore appropriate. (Ibid.)

The jury's award of punitive damages against Breg must likewise be reversed. As

to Breg, the jury made the necessary finding of malice, oppression, or fraud under Civil

Code section 3294 only in connection with Engler's claim for intentional concealment.25

25 The record does not reveal why Engler did not ask for findings of malice,
oppression, or fraud in connection with her strict products liability and negligence causes
of action against Breg. As a general matter, such causes of action may give rise to
awards of punitive damages where malice, oppression, or fraud is found. (West v.
Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 867-868; Grimshaw,
supra, 119 Cal.App.3d at p. 810 ["We find no statutory impediments to the application of
Civil Code section 3294 to a strict products liability case based on design defect."]; see
Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 741.) However, without
findings on these specific causes of action, the jury's verdicts against Breg on these
causes of action cannot support the jury's award of punitive damages against Breg. (See
Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949,
68
Because that claim has been reversed, the punitive damages award against Breg must be

reversed as well. (See Opsal v. United Services Automobile Association (1991) 2

Cal.App.4th 1197, 1207.) We therefore need not consider Breg's other challenges to the

punitive damages award and related jury instructions.

B. Strict Liability and Negligent Failure to Warn Against Oasis

Oasis contends that the evidence does not support the jury's verdict on Engler's

causes of action for strict liability design defect, strict liability failure to warn, and

negligent failure to warn.26 Oasis argues that a required element of each of these claims

is that Oasis was a manufacturer or distributor of the Polar Care device and the evidence

was insufficient to support a finding on this element. Bigler-Engler does not provide any

opposing argument. Reviewing the jury's verdict for substantial evidence (Kasparian,

supra, 38 Cal.App.4th at pp. 259-260), we agree with Oasis that the jury's verdict as to

the strict liability claims must be reversed. However, we conclude Oasis has not shown

the jury's verdict on Engler's claim of negligent failure to warn was not supported by the

evidence.

"A manufacturer or retailer may be held strictly liable for placing a defective

product on the market if the plaintiff's injury results from a reasonably foreseeable use of

961 ["A jury instruction alone does not constitute a finding. Nor does the fact that the
evidence might support such a finding constitute a finding."].)

26 "California law recognizes separate failure to warn claims under both strict
liability and negligence theories." (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th
167, 181.) At trial, Engler asserted a cause of action for negligent design only against
Breg.
69
the product. [Citations.] Strict product liability may be premised upon a theory of design

defect, manufacturing defect or failure to warn." (Chavez v. Glock, Inc. (2012) 207

Cal.App.4th 1283, 1302 (Chavez).) "However . . . , strict liability is not imposed even if

the defendant is technically a 'link in the chain' in getting the product to the consumer

market if the judicially perceived policy considerations are not satisfied. Thus, a

defendant will not be held strictly liable unless doing so will enhance product safety,

maximize protection to the injured plaintiff, and apportion costs among the defendants."

(Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1537.)

An important exception to the general rule of strict liability applies to medical

providers that use or dispense products as part of their treatment of patients. (San Diego

Hospital Assn. v. Superior Court (1994) 30 Cal.App.4th 8, 13 (San Diego Hospital Assn.)

["California courts have repeatedly held that strict liability may not be imposed against

health care providers for injuries suffered by their patients."]; Silverhart v. Mount Zion

Hospital (1971) 20 Cal.App.3d 1022, 1027-1028 (Silverhart); see Murphy v. E. R. Squibb

& Sons, Inc. (1985) 40 Cal.3d 672, 679 (Murphy).) For example, in Hector v. Cedars-

Sinai Medical Center (1986) 180 Cal.App.3d 493, 506-507 (Hector), the court considered

whether a hospital could be held strictly liable for defects in a pacemaker it purchased

and implanted in a patient. The court concluded that the hospital could not be held

strictly liable. "The essence of the relationship between hospital and patient is the

provision of professional medical services necessary to effect the implantation of the

pacemaker—the patient does not enter the hospital merely to purchase a pacemaker but to

obtain a course of treatment which includes implantation of a pacemaker. [Citations.] As

70
a provider of services rather than a seller of a product, the hospital is not subject to strict

liability for a defective product provided to the patient during the course of his or her

treatment." (Id. at p. 504.)

Here, Oasis was primarily a provider of medical services, including knee surgery,

to Engler. As part of those services, it offered the Polar Care device for sale or rental.

Like the pacemaker in Hector, the Polar Care device was prescribed to enhance Engler's

medical treatment. Oasis was therefore a provider of medical services rather than a mere

seller or renter of the Polar Care device. As such, Oasis cannot be held strictly liable for

defects. (Hector, supra, 180 Cal.App.3d at pp. 507-508 & fn. 3; see San Diego Hospital

Assn., supra, 30 Cal.App.4th at p. 13; Silverhart, supra, 20 Cal.App.3d at pp. 1027-

1028.) The jury's verdicts on Engler's claims for strict liability design defect and strict

liability failure to warn must be reversed and judgment entered in Oasis's favor on these

claims. (See Singh, supra, 186 Cal.App.4th at p. 357; see also Sonic Manufacturing

Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic

Manufacturing).)27

This exception, however, applies only to causes of action brought under a theory

of strict liability. Causes of action based in negligence are not affected. (San Diego

Hospital Assn., supra, 30 Cal.App.4th at p. 17 ["The hospital remains liable for the

27 Oasis argues that evidence relevant only to theories of strict liability should not
have been admitted against it if strict liability were not a proper theory. Oasis does not
argue that admission of this evidence affected any other claims against it. Because we
reverse the jury's verdict on Engler's strict liability claims against Oasis, we need not
consider any additional prejudice caused by the evidence cited by Oasis on those claims.
We consider prejudice to Chao in part VI. A., post.
71
consequences of any intentional or negligent acts that have been alleged."]; Silverhart,

supra, 20 Cal.App.3d at p. 1028 ["Its liability, if any, would depend on whether it was

negligent or guilty of intentional misconduct."]; see Murphy, supra, 40 Cal.3d at p. 677.)

Engler's claim for negligent failure to warn, as its name implies, required Engler to prove

that Oasis had acted negligently. (See Chavez, supra, 207 Cal.App.4th at p. 1302

[" 'Negligence law in a failure-to-warn case requires a plaintiff to prove that a

manufacturer or distributor did not warn of a particular risk for reasons which fell below

the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have

known and warned about.' "].)

Oasis has not provided any authority in which the medical provider exception to

strict liability claims was applied to a claim for negligent failure to warn. Nor has Oasis

explained why the exception should be extended in this manner. "Negligence and strict

products liability are separate and distinct bases for liability that do not automatically

collapse into each other because the plaintiff might allege both when a product warning

contributes to her injury." (Conte v. Wyeth, Inc., supra, 168 Cal.App.4th at p. 101.) The

potential liability under a theory of strict liability is broader than under a theory of

negligence. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002.)

The policy reasons for shielding medical providers like Oasis from strict liability

therefore do not apply with the same force to negligence actions. Oasis already faces

liability for other types of negligence, including medical negligence, and Oasis has not

provided any reason why claims for negligent failure to warn should be treated

72
differently. Liability for negligent failure to warn does not dramatically expand Oasis's

exposure under the circumstances here.

Aside from the medical provider exception discussed above, Oasis does not

otherwise challenge the sufficiency of the evidence supporting this cause of action. We

therefore reject Oasis's argument that the jury's verdict on Engler's claim for negligent

failure to warn should be reversed.

C. Intentional Concealment and Breach of Fiduciary Duty Against Chao

Chao contends the evidence does not support the jury's verdict against him on

Engler's causes of action for intentional concealment and breach of fiduciary duty. We

disagree. As noted, "[t]he elements of a cause of action for fraud based on concealment

are: ' "(1) the defendant must have concealed or suppressed a material fact, (2) the

defendant must have been under a duty to disclose the fact to the plaintiff, (3) the

defendant must have intentionally concealed or suppressed the fact with the intent to

defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not

have acted as he did if he had known of the concealed or suppressed fact, and (5) as a

result of the concealment or suppression of the fact, the plaintiff must have sustained

damage." ' " (Kaldenbach, supra, 178 Cal.App.4th at p. 850.) Similarly, in the context of

a claim for breach of fiduciary duty, "a physician has a fiduciary duty to disclose all

information material to the patient's decision." (Moore v. Regents of the University of

California (1990) 51 Cal.3d 120, 129 (Moore).)

Chao argues that both claims require that Chao have prior knowledge of the facts

he failed to disclose to Engler. Bigler-Engler does not appear to contest this requirement,

73
arguing instead it was satisfied by the evidence. Assuming without deciding that prior

knowledge was a requirement of Engler's claims for intentional concealment and breach

of fiduciary duty under the circumstances of this case, we agree with Bigler-Engler that it

was supported by the evidence here.

Chao focuses on the purported lack of evidence that he knew continuous use of the

Polar Care device posed a risk of injury to Engler. Bigler-Engler sets forth evidence

supporting this knowledge but also points to evidence of a separate undisclosed fact:

Chao's financial interest in Engler's Polar Care device rental. Chao's failure to disclose

this information is sufficient to support these causes of action and thus we need not

consider whether Chao's knowledge of risk to Engler also supports these claims.

A physician's failure to disclose his financial interest in a prescribed treatment can

form the basis of a claim for breach of fiduciary duty. "[A] physician must disclose

personal interests unrelated to the patient's health, whether research or economic, that

may affect the physician's professional judgment; and . . . a physician's failure to disclose

such interests may give rise to a cause of action for performing medical procedures

without informed consent or breach of fiduciary duty." (Moore, supra, 51 Cal.3d at p.

129.) Similarly, as with any other material fact, intentional concealment of such an

interest may be actionable in fraud. (Kaldenbach, supra, 178 Cal.App.4th at p. 850.)

Here, the evidence showed that Chao was aware of the profits Oasis made as a result of

sales and rentals of the Polar Care device. Chao himself benefited from those profits as a

shareholder in Oasis. Chao therefore had a financial interest in Engler's rental of the

74
Polar Care device from Oasis. It is undisputed that Chao did not disclose that financial

interest to Engler or her parents.

Chao argues that nondisclosure of his financial interest is insufficient to support

the jury's verdict on these claims because the instructions provided to the jury stated, in

part, that an element of Engler's claim for breach of fiduciary duty was "[t]hat Dr.

Chao . . . knowingly acted against Whitney Engler's interests by placing [his] financial

interests above patient welfare by failing to disclose [his] economic interest in the rental

of the Polar Care device and the possible cold injury to plaintiff that might have resulted

from the use of the device. . . ." Chao's argument is unpersuasive. He provides no legal

argument or authorities in support. In assessing the sufficiency of the evidence, we

assess the evidence against the requirements of law, not the requirements stated in the

court's jury instructions. The accuracy of the court's jury instructions is a separate matter

that Chao does not raise here. Moreover, the cited jury instruction applied only to

Engler's claim for breach of fiduciary duty. The jury instruction regarding concealment

did not contain any limitation on the fact that may be concealed, other than it must be

"important." Chao has not attempted to show that the evidence did not support the jury's

verdict based on nondisclosure of Chao's financial interest. Chao therefore has not

shown any error in the jury's verdict on these claims.28

28 Chao contends the evidence was insufficient to support the jury's finding of
malice, oppression, or fraud in connection with these claims. Chao's arguments largely
overlap with his arguments regarding the substantive elements of these claims. Although
the jury must make this finding by clear and convincing evidence, our standard of review
on appeal remains the familiar substantial evidence test. We must determine whether a
75
 D. Intentional Misrepresentation Against Chao

Chao contends the evidence does not support the jury's verdict against him on

Engler's claim for intentional misrepresentation. " 'To establish a claim for fraudulent

misrepresentation, the plaintiff must prove: "(1) the defendant represented to the plaintiff

that an important fact was true; (2) that representation was false; (3) the defendant knew

that the representation was false when the defendant made it, or the defendant made the

representation recklessly and without regard for its truth; (4) the defendant intended that

the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the

representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the

defendant's representation was a substantial factor in causing that harm to the

plaintiff." ' " (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605-606.)

Again, we review the jury's verdict for substantial evidence. (Kasparian, supra, 38

Cal.App.4th at pp. 259-260.)

Chao identifies the alleged misrepresentations as the following statements: (1)

continuous use cold therapy was better than traditional cold therapy; (2) continuous use

cold therapy would reduce pain and swelling; (3) continuous use cold therapy would

decrease recovery time and risk of infection; and (4) continuous use cold therapy would

maximize Engler's return to full function. Chao argues the evidence does not support a

reasonable jury could make the finding by clear and convincing evidence. (See Hoch v.
Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 59-60.) Here, for the reasons we have
already explained, the jury could reasonably find by clear and convincing evidence that
Chao engaged in fraud, i.e., the intentional concealment of his financial interest in rental
of the Polar Care device. The jury's findings are therefore supported by the evidence.
(See Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1559-
1560.)
76
finding that Chao knew these statements were false or made these statements recklessly

and without regard for their truth. We agree.

The evidence showed Chao had a long positive history with mechanized cold

therapy devices. He has prescribed the Polar Care device, and others like it, to hundreds

of patients. At trial, Chao testified that he believed mechanized cold therapy, like the

Polar Care device, was superior to traditional icing because it provided more coverage of

the affected area, allowed for continuous use, and was more convenient. Chao denied

reading any articles or receiving any information that continuous use cold therapy was

unsafe.

Engler's expert witnesses criticized continuous use cold therapy but did not

connect their criticism to Chao's knowledge at the time of Engler's surgery. Engler's

experts stated they did not believe continuous use cold therapy would help the healing

process (because most published medical studies did not support that conclusion) and that

continuous use cold therapy was not better than traditional cold therapy such as a bag of

ice. In many cases, however, they relied on published medical studies that postdated

Engler's surgery. Engler's expert witnesses also acknowledged that continuous use cold

therapy may have some beneficial effects, such as reducing pain and swelling. One

expert witness stated that "some . . . doctors" believe cold therapy may help with the

healing process or be used even against an infection.

Bigler-Engler does not directly address the falsity of the statements Chao made.

Instead, Bigler-Engler points to Chao's experience with Warner. The evidence bearing

on this issue, viewed in the light most favorable to the jury's verdicts, shows that before

77
Engler's injury, Chao treated Warner with the Polar Care 500 following Warner's knee

surgery. Chao provided Warner with the same instructions regarding continuous use that

he provided to Engler. The warnings and instructions on Warner's Polar Care device

were the same as those on Engler's. After using the Polar Care device for several weeks,

Warner experienced redness, swelling, inflammation, and finally mild necrosis on his

knee. Warner saw Chao, who told him to continue using the Polar Care device. Two

weeks later, Warner's necrosis worsened. Chao referred Warner to a plastic surgeon, who

performed a skin graft to treat Warner's necrosis. Chao watched the procedure, which

was highly unusual. Also before Engler's surgery, Warner sued Breg and Chao (as well

as others). Chao received Warner's summons and complaint. During the litigation,

Warner claimed that his injuries were caused by continuous use of the Polar Care device.

Later, after Engler's knee exhibited similar signs of necrosis, Chao told Engler and her

parents he had never seen anything like Engler's wound before.

Based on this evidence, the jury could reasonably infer Chao knew, prior to

Engler's surgery, that continuous use of the Polar Care 500 posed a risk of harm to her.

Continuous use of the Polar Care 500 had injured Warner. Based on the expert testimony

in Engler's trial regarding the mechanism of injury in an NFCI, the jury could conclude

that Chao knew such an injury could occur in others, including Engler, as well. The jury

could conclude that Chao's statement to Engler and her parents that he had not seen an

injury like Engler's before, was false. The falsity of the statement could reasonably

support the inference that there were in fact similarities between Warner and Engler, that

78
Chao recognized those similarities, and that Chao wanted to minimize and conceal any

connection between Warner and Engler.29

However, even if Chao recognized that use of the Polar Care device put Engler at

some risk of harm, this recognition does not render Chao's preoperative statements false

or made in reckless disregard of their truth. The evidence does not show that Chao told

Engler or her parents that there was no risk of harm from using the Polar Care device.

Instead, Chao made statements regarding the superiority and efficacy of the Polar Care

device. The evidence does not support the inference that Chao believed those statements

were untrue or that they were made in reckless disregard of their truth. A medical device

like the Polar Care may be superior to other treatments and efficacious while also posing

a risk of harm. And, as we have discussed, although Engler's experts disagreed about the

superiority and efficacy of the Polar Care device, their opinions did not directly bear on

Chao's knowledge of falsity or his recklessness with regard to the falsity of his statements

to Engler and her parents.

To prove intentional misrepresentation, Engler was required to show that Chao

was aware of the falsity of his statements to Engler when he made them or that Chao

acted in reckless disregard for their probable falsity. (Engalla v. Permanente Medical

Group, Inc. (1997) 15 Cal.4th 951, 974.) Because the evidence does not support this

29 This false statement cannot support the jury's verdict as to Engler's claim for
intentional misrepresentation because the evidence does not support the other elements of
a claim, including reliance and causation, based on that statement. Chao made the
statement after Engler's surgery, after she had decided to rent the Polar Care device, after
she used the device continuously for several weeks, and after her knee had already been
injured.
79
requirement given the specific statements Chao made, the jury's verdict against Chao for

intentional misrepresentation must be reversed. (See Stone v. Foster (1980) 106

Cal.App.3d 334, 345-346 (Stone).) Judgment on this claim should be entered in Chao's

favor. (See Singh, supra, 186 Cal.App.4th at p. 357; see also Sonic Manufacturing,

supra, 196 Cal.App.4th at p. 466.)30

E. Medical Negligence and the Legal Sufficiency of Other Torts Against Chao

In a variation of his substantial evidence arguments, Chao also challenges the

jury's verdicts on Engler's claims of intentional concealment, intentional

misrepresentation, and breach of fiduciary duty as not legally cognizable on the facts

presented. Chao contends these claims must be pled as medical negligence, not other

torts.

In Cobbs v. Grant (1972) 8 Cal.3d 229 (Cobbs), the Supreme Court considered an

analogous issue in the context of the tort of battery: whether a doctor who performs a

surgery (to which the patient consents), but who does not disclose a known risk of

surgery may be liable for battery if the known risk occurs. (Id. at p. 239.) The Supreme

Court recognized that the question was a close one, "either prong of which is supportable

by authority, [but] the trend appears to be towards categorizing failure to obtain informed

consent as negligence." (Id. at p. 240.) "The battery theory should be reserved for those

circumstances when a doctor performs an operation to which the patient has not

consented. When the patient gives permission to perform one type of treatment and the

30 In light of our conclusion, we need not decide whether the evidence supported the
jury's finding of malice, oppression, or fraud as to this claim.
80
doctor performs another, the requisite element of deliberate intent to deviate from the

consent given is present. However, when the patient consents to a certain treatment and

the doctor performs that treatment but an undisclosed inherent complication with a low

probability occurs, no intentional deviation from the consent given appears; rather, the

doctor in obtaining consent may have failed to meet his due care duty to disclose

pertinent information. In that situation the action should be pleaded in negligence." (Id.

at pp. 240-241.)

This principle has been extended to fraud causes of action based on the same set of

facts. "The same policy factors which favor treatment as negligence rather than battery

also favor treatment as negligence rather than fraud." (Stone, supra, 106 Cal.App.3d at p.

347.) Thus, "where a physician fails to disclose low probability inherent risks and

subsequent complications arise due to those risks, the resulting cause of action is one for

negligence." (Ibid.)

Stone recognized, however, that it would be incorrect to conclude "that a

physician's preoperative representations may never amount to fraud." (Stone, supra, 106

Cal.App.3d at p. 347.) The fraudulent conduct here, as we have discussed, consisted at

least in part of Chao's failure to disclose his financial interest in the rental of Engler's

Polar Care device. These facts are not analogous to the facts at issue in Cobbs and Stone.

In those cases, the physician failed to disclose low probability inherent risks in a medical

procedure. Cobbs and Stone concluded that this nondisclosure did not affect the patient's

consent to the procedure itself; it merely affected the degree of risk accepted by the

patient. Here, by contrast, it could reasonably be inferred that Chao's nondisclosure of

81
his financial interest affected Engler's decision to rent the Polar Care device itself. Engler

did not merely receive an incomplete disclosure of the risks of a recommended medical

treatment (as in Cobbs and Stone). Instead, the information Chao failed to disclose would

reasonably have called into question Chao's recommendation itself. Chao's nondisclosure

prevented Engler from fully considering whether Chao's recommendation was worthy of

trust. By contrast, mere nondisclosure of a low-probability inherent risk does not call the

physician's overall recommendation into question. The patient's trust in the physician's

judgment in recommending the medical procedure is not affected in the same way as

disclosure of a financial interest. The facts of this case are therefore distinguishable from

Cobbs and Stone, and the jury's verdict on Engler's claim for intentional concealment

may not be reversed on this basis.31

Chao's claim that the jury's verdict on Engler's claim for breach of fiduciary duty

must be reversed is likewise untenable. In Moore, as we have explained, the Supreme

Court held that a physician's failure to disclose his economic interest in a medical

treatment may give rise to a claim for breach of fiduciary duty. (Moore, supra, 51 Cal.3d

at p. 129.) Moore postdates Cobbs; it therefore precludes extending the reasoning in

Cobbs to a claim for breach of fiduciary duty based on failure to disclose an economic

interest. Chao's reliance on the out-of-state opinion in D.A.B. v. Brown (Minn.Ct.App.

1997) 570 N.W.2d 168 is unavailing. That court disagreed with Moore and determined

31 Because we have already concluded the evidence does not support the jury's
verdict on Engler's claim for intentional misrepresentation against Chao, we need not
decide whether it would be legally viable in light of Cobbs and Stone.

82
that a physician's failure to disclose illegal kickbacks was a claim for medical malpractice

rather than breach of fiduciary duty under Minnesota law. (Id. at pp. 171-172.) We find

Moore persuasive, and we are bound by it in any event. (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455.)32

V. Jury Instructions

A. Breach of Fiduciary Duty

Oasis contends the court erred by instructing the jury with a modified version of

CACI No. 4101 regarding breach of fiduciary duty. Oasis argues the modified

instruction improperly conflated the elements of breach of fiduciary duty with the

elements of medical negligence, thereby inaccurately stating the law and confusing the

jury. "We independently review a claim of instructional error, as the underlying question

32 Chao makes several additional cursory substantial evidence arguments. Chao first
contends that "there is no substantial evidence that Dr. Chao did not disclose his financial
interest." We disagree. While Engler and her parents knew they were renting the Polar
Care device from Oasis, the jury could reasonably find they did not know Oasis and Chao
profited from the rental. Chao also claims that "based on the negligible amount of money
involved, the jury could not rationally conclude that any 'profit' was a substantial factor in
Dr. Chao's decision to recommend the [Polar Care] device." But Engler's rental cannot
be viewed in isolation; it was part of a profit-making enterprise. There is no evidence
that enterprise yielded only "negligible" profits for Oasis and Chao. The jury could
reasonably conclude that Chao was motivated to continue this profit-making enterprise
when he recommended the Polar Care device to Engler and her parents. Finally, Chao
claims that neither Engler nor her parents testified that they would not have rented the
Polar Care device if Chao told them of his financial interest or of the risks and symptoms
of an NFCI. Chao provides no citations to the record and does not discuss any of the
evidence bearing on this issue. The judgment below is presumed to be correct, and Chao
has the burden of demonstrating error. Chao cannot do so simply by asserting that no
evidence exists to support a particular finding. (See Huong Que, Inc. v. Luu (2007) 150
Cal.App.4th 400, 409.) By failing to adequately discuss the evidence supporting the
jury's verdict on this issue, Chao has waived this argument on appeal.
83
is one of law, involving the determination of applicable legal principles." (Holguin v.

DISH Network LLC (2014) 229 Cal.App.4th 1310, 1319.)

As provided by the court, the instruction at issue read as follows: "Whitney

Engler claims that she was harmed by Dr. Chao's and/or Oasis' breach of the fiduciary

duty to use reasonable care. To establish this claim, Whitney Engler must prove all of the

following: [¶] 1. That Dr. Chao and/or Oasis were Whitney Engler's physician and a

medical clinic; [¶] 2. That Dr. Chao and/or Oasis acted on Whitney Engler's behalf for

purposes of her medical treatment; [¶] 3. That Dr. Chao and/or Oasis failed to act as a

reasonably careful physician and a medical clinic would have acted under the same or

similar circumstances by placing their financial interests above patient welfare by failing

to disclose their economic interest in the rental of the Polar Care device and the possible

cold injury to plaintiff that might have resulted from the use of the device; [¶] 4. That

Whitney Engler was harmed; and [¶] 5. That Dr. Chao's and/or Oasis' misconduct was a

substantial factor in causing Whitney Engler's harm."

Oasis contends the third element of this instruction was an erroneous statement of

law. Oasis argues that Engler's breach of fiduciary duty claim was an intentional tort and

the third element impermissibly framed the claim as one for negligence. Oasis's premise

is flawed. As Oasis acknowledges in a footnote, breach of fiduciary duty need not be

intentional; it can be negligent. (See, e.g., Moore, supra, 51 Cal.3d at p. 129 [cause of

action for breach of fiduciary duty is equivalent to cause of action for lack of informed

consent].) CACI No. 4101 itself states the elements of the cause of action for breach of

fiduciary duty under a theory of negligence. Oasis claims that Engler's operative

84
complaint pled her breach of fiduciary duty claim as an intentional tort. Even assuming

the operative complaint has any bearing on this issue, we disagree. The complaint

alleged intentional acts by Oasis and Chao, but those allegations could also satisfy the

elements of a claim for breach of fiduciary duty based on a theory of negligence.

Similarly, although the jury's special verdict form contained a heading identifying

Engler's claim as an intentional tort, this heading is not determinative. The question here

is whether the court's jury instruction accurately stated the law. (See Bay Guardian Co.

v. New Times Media LLC (2010) 187 Cal.App.4th 438, 462 [" 'In considering a claim of

instructional error we must first ascertain what the relevant law provides, and then

determine what meaning the instruction given conveys.' "].) The law allows a claim for

breach of fiduciary duty to be based in negligence. The court therefore did not err by

providing a jury instruction on Engler's claim for breach of fiduciary duty based in

negligence.

In a similar vein, Oasis contends the jury's answers in its special verdict were

inconsistent. In connection with Engler's claim for breach of fiduciary duty, the jury

answered "Yes" to the following question: "Did [Oasis] breach [its] fiduciary duties by

failing to disclose material facts to Plaintiff?" By contrast, in connection with Engler's

claim for intentional concealment, the jury answered "No" to the following question:

"Did [Oasis] intentionally fail to disclose an important fact that Whitney Engler did not

know and could not reasonably have discovered?" Oasis argues these questions are

"essentially identical" and the jury's answers are therefore inconsistent.

85
 " '[A] special verdict's correctness must be analyzed as a matter of law.' " (City of

San Diego v. D.R. Horton San Diego Holding Co. (2005) 126 Cal.App.4th 668, 678.)

" 'Inconsistent verdicts are " 'against law' " ' and are grounds for a new trial. [Citations.]

'The inconsistent verdict rule is based upon the fundamental proposition that a factfinder

may not make inconsistent determinations of fact based on the same evidence.' " (Id. at

p. 682.) Here, however, Oasis has not shown an inconsistency between the two answers

at issue. The questions were materially different: the intentional concealment verdict

form required the jury to find that Oasis "intentionally fail[ed] to disclose an important

fact," while the breach of fiduciary duty cause of action had no such requirement of

intentionality. (Italics added.) Oasis has not attempted to show why it could not have

been found to have failed to disclose an important fact to Engler but not "intentionally"

done so. Oasis has not shown any inconsistency in the jury's verdict requiring reversal.33

B. Learned Intermediary Doctrine

Breg contends the court erred by refusing to instruct the jury that Breg's strict

liability duty to warn could be discharged by adequate warnings to prescribing medical

providers—rather than their patients—under the learned intermediary doctrine. "The

33 Oasis has likewise shown no inconsistency between the jury's finding that Oasis
acted with malice, oppression, or fraud in connection with Engler's breach of fiduciary
duty claim and the jury's decision not to award punitive damages. A finding of malice,
oppression, or fraud does not obligate the jury to award punitive damages. (See Brewer
v. Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 800-801; see also CACI
Nos. 3942, 3949.) Nor does this finding show that breach of fiduciary duty must always
be an intentional tort. "[P]unitive damages sometimes may be assessed in unintentional
tort actions under Civil Code section 3294 . . . ." (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 1004.)
86
concept of strict liability imposes legal responsibility for injury upon the manufacturer of

a product without proof of negligence based upon a determination that the product is: (1)

defectively manufactured, (2) defectively designed, or (3) distributed without adequate

warnings as to its potential for harm." (Artiglio v. Superior Court (1994) 22 Cal.App.4th

1388, 1392, italics added.) This general principle has been interpreted narrowly in

connection with some types of medical products available only by prescription. "[I]n the

case of prescription drugs, the duty to warn runs to the physician, not to the patient."

(Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1116.) " '[I]f adequate warning of

potential dangers of a drug has been given to doctors, there is no duty by the drug

manufacturer to insure that the warning reaches the doctor's patient for whom the drug is

prescribed.' " (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 65.)

" 'The rationale of the foregoing rule is: "(1) The doctor is intended to be an

intervening party in the full sense of the word. Medical ethics as well as medical practice

dictate independent judgment, unaffected by the manufacturer's control, on the part of the

doctor. (2) Were the patient to be given the complete and highly technical information on

the adverse possibility associated with the use of the drug, he would have no way to

evaluate it, and in his limited understanding he might actually object to the use of the

drug, thereby jeopardizing his life. (3) It would be virtually impossible for a

manufacturer to comply with the duty of direct warning, as there is no sure way to reach

the patient." ' " (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 754-755,

citation omitted.)

87
 The learned intermediary doctrine, as this rule is known, has been extended in

California to implantable medical devices in addition to prescription drugs. (Valentine v.

Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1483.) "In the case of

prescription drugs and implants, the physician stands in the shoes of the 'ordinary user'

because it is through the physician that a patient learns of the properties and proper use of

the drug or implant. Thus, the duty to warn in these cases runs to the physician, not the

patient." (Ibid., italics added; see Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 361,

fn. 6.) Breg has not cited any authority extending the learned intermediary doctrine to

medical devices such as the Polar Care 500, which are not implantable, and we are aware

of none.

Based on our consideration of the policies underlying the learned intermediary

doctrine, and the past cases where it has been considered, we conclude the doctrine does

not apply to medical devices such as the Polar Care 500 which require the patient to use

and apply the medical device themselves. Unlike prescription drugs (which may have

only rudimentary patient instructions, e.g., take by mouth twice daily) or implantable

medical devices (which may have no patient instructions at all), medical devices such as

the Polar Care 500 are intended to be operated by the patient outside the medical

environment. With the Polar Care device, the patient herself must decide to apply the

device, position the device correctly on the treatment area, ensure the water flow is

appropriate for the desired temperature, and stop using the device if complications

develop. All of these actions typically occur at home without the assistance of medical

professionals. While a medical professional decides whether a patient would benefit

88
from a medical device such as the Polar Care 500 (and therefore a prescription is

required), it is the patient who must play an active role in treating herself with the device,

including by operating the device herself.

Moreover, unlike prescription drugs or implantable devices, for which it may be

impractical to provide patient-directed warnings, medical devices such as the Polar Care

500 are provided to patients for their use. Warnings and instructions can be provided

with, or reflected on, the device itself. Here, as we have noted, Breg included patient

instructions and warnings with the Polar Care 500 device. Under these circumstances,

the duty to warn runs to the patient as well as the medical professional. The patient-

directed warnings are required to inform and assist the patient, who must play an active

role in her own treatment with the medical device, as we have discussed. The court did

not err by refusing Breg's proposed learned intermediary instruction.

VI. Evidentiary Issues

A. Oasis's Changes to Polar Care Device Instructions

Chao contends that evidence of Oasis's changes to Polar Care device instructions

should not have been admitted because it was relevant only to Engler's strict liability

claim against Oasis. We have already held that Engler's strict liability claims against

Oasis should be reversed. (See part IV. B., ante.) Even assuming admission of this

evidence was error, however, Chao has not shown prejudice.

"A judgment of the trial court may not be reversed on the basis of the erroneous

admission of evidence, unless that error was prejudicial. (Code Civ. Proc., § 475.) The

record must show that the appellant 'sustained and suffered substantial injury, and that a

89
different result would have been probable if such error . . . had not occurred or existed.

There shall be no presumption that error is prejudicial, or that injury was done if error is

shown.' (Ibid.) Additionally, article VI, section 13, of the California Constitution

provides that a judgment may not be set aside based on the erroneous admission of

evidence 'unless, after an examination of the entire cause, including the evidence, the

court shall be of the opinion that the error complained of has resulted in a miscarriage of

justice.' Evidence Code section 353 reinforces that provision: we may not reverse a

judgment 'by reason of the erroneous admission of evidence unless . . . [¶] . . . [¶] . . . the

error or errors complained of resulted in a miscarriage of justice.' (Evid. Code, § 353,

subd. (b).) 'In civil cases, a miscarriage of justice should be declared only when the

reviewing court, after an examination of the entire cause, including the evidence, is of the

opinion that it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error.' [Citation.] In making this

assessment 'we are not to look to the particular ruling complained of in isolation, but

rather must consider the full record in deciding whether a judgment should be set aside.'

[Citation.] The appellant bears the burden of establishing that the error was prejudicial."

(Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225

Cal.App.4th 786, 799 (Grail Semiconductor).)

Chao claims that introduction of this evidence undermined his defense, but he

does not discuss the evidence introduced at trial that would tend to support the jury's

verdict. The prejudice of erroneously admitted evidence cannot be assessed in a vacuum;

it must be placed in the context of the entire record. Chao has not done so. For example,

90
as discussed in part IV. C., ante, Engler's claims for intentional concealment and breach

of fiduciary duty were supported by Chao's failure to disclose his financial interest in

rental of the Polar Care device, which is an issue that was not affected by the change in

instruction. Similarly, Engler's professional negligence claim relied on expert testimony

of the applicable standard of care and Chao's actions at the time of Engler's surgery.

Chao has not shown it was reasonably probable he would have obtained a different result

had the evidence not been admitted. (See Grail Semiconductor, supra, 225 Cal.App.4th

at p. 799.)

Moreover, the court explicitly instructed the jury that the evidence of Oasis's

changes in instructions was admissible only against Oasis. Absent evidence to the

contrary, we presume the jury followed the court's instruction. (Rayii v. Gatica (2013)

218 Cal.App.4th 1402, 1415.) The leading questions identified by Chao, and the general

misconduct discussed in part II., ante, do not show that the jury disregarded the court's

instruction. The court's instruction therefore prevented any prejudice to Chao. (McIntyre

v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 675.)

B. DME Direct Document

Oasis contends the court prejudicially erred by allowing testimony regarding a

document entitled "DME Direct: A Cash and/or Rental Program for the Direct Delivery

of Durable Medical Equipment to Patients" and allowing it to be displayed to the jury.

The document itself was not admitted into evidence. The DME Direct document was

authored by a Breg employee who had previously worked at Oasis. It was created to

encourage medical groups and physicians to sell or rent medical devices like the Polar

91
Care 500. It discussed an unnamed medical group, which was in reality Oasis, and the

profits it made selling and renting medical devices. In pretrial proceedings, the trial court

ruled that the DME Direct document was admissible against Oasis for the purpose of

showing that Oasis made a profit from the sale and rental of Polar Care devices. The

financial numbers in the document were redacted.

In his opening statement, Engler's counsel displayed portions of the DME Direct

document. In one displayed portion, the document stated, "The DME Direct is a program

designed to deliver durable medical equipment such as [continuous passive motion], cold

therapy and bracing directly to the patient with a goal of making a profit." Another

portion displayed during opening statements read, "DME & The Law: One of the most

common questions that is asked is, 'is this legal?' " Engler's counsel commented, "If you

have to ask, it's probably not legal." An expert witness called by Engler referenced the

DME Direct document, and its stated goal of making a profit, as support for her opinion

that Chao and Oasis acted illegally and unethically in prescribing the Polar Care device to

patients.

Oasis renewed its objection to the DME Direct document because (1) the author of

the DME Direct document was unavailable at trial and did not testify and (2) Oasis had

stipulated that it made a profit from the rental of Polar Care devices. The court

determined that the document was inadmissible hearsay in light of the author's

unavailability. However, the court allowed Engler's counsel to continue to reference it in

witness examinations and display portions of it during closing arguments.

92
 Assuming it was error for the trial court to allow Engler to display, read, and

otherwise reference portions of the DME Direct document during trial, and assuming that

Oasis's objection to the document was effectively preserved, we conclude Oasis has not

shown prejudice. Prejudice is shown where it is reasonably probable that a result more

favorable to the appealing party would have been reached absent the error. (Grail

Semiconductor, supra, 225 Cal.App.4th at p. 799.) Oasis contends it was prejudiced

because the DME Document allowed Engler's expert witnesses and her counsel to argue

that Oasis rented Polar Care devices with the goal of making a profit. But Oasis does not

compare this allegedly impermissible argument to the other evidence admitted at trial or

explain how the jury's verdict would have been different if the DME Document had not

been discussed. We note the jury could have reasonably inferred that Oasis had a goal of

making a profit on its sale and rental of the Polar Care devices based on other properly

admitted evidence, including Oasis's stipulation that it made such a profit. Oasis points

to comments by the trial court during a hearing on posttrial motions that Oasis worked

with Breg to develop and market the Polar Care device. The court does not reference the

DME Direct document or distinguish it from other evidence introduced at trial. The

court's comments are insufficient to show prejudice. Even assuming the court erred by

allowing the limited introduction of the DME Direct document, Oasis has not shown the

error was prejudicial.

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 VII. Additional Damages Issues

A. MICRA

Chao and Oasis contend MICRA limits Engler's noneconomic damages recovery

to $250,000. Although we have concluded that the jury's noneconomic damages award

must be modified (see part III., ante), we consider this issue because the modified amount

of $1,300,000 still exceeds the $250,000 MICRA threshold and to give guidance to the

trial court should Bigler-Engler accept this reduced amount.

MICRA addressed a number of perceived flaws in civil actions against health care

providers. The relevant provision here imposes a $250,000 cap on noneconomic

damages "[i]n any action for injury against a health care provider based on professional

negligence[.]" (Civ. Code, § 3333.2, subds. (a), (b).) The statute defines professional

negligence as "a negligent act or omission to act by a health care provider in the

rendering of professional services, which act or omission is the proximate cause of

personal injury or wrongful death, provided that such services are within the scope of

services for which the provider is licensed and which are not within any restriction

imposed by the licensing agency or licensed hospital." (Id., § 3333.2, subd. (c)(2); see

Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 84-85.)

"The cap on damages under Civil Code section 3333.2 applies to injuries 'based on

professional negligence,' i.e., medical treatment falling below the professional standard of

care." (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 113 (Barris).) However,

"MICRA's reference to actions based on 'professional negligence' is not strictly limited to

classic sponge-in-the-patient medical malpractice actions . . . ." (Waters v. Bourhis

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(1985) 40 Cal.3d 424, 432-433 (Waters).) For example, in Barris, the Supreme Court

held that a claim against a hospital for failure to stabilize an emergency medical condition

under the federal Emergency Medical Treatment and Active Labor Act (EMTALA; 42

U.S.C. § 1395dd(e)(3)(A)) was subject to MICRA's damages cap. (Barris, supra, 20

Cal.4th at p. 105.) "[T]he elements of a civil claim for failure to stabilize include the

following: (1) the hospital had actual knowledge that a patient was suffering from an

'emergency medical condition'; and (2) did not . . . provide for necessary stabilizing

treatment before transfer or discharge, i.e., the transfer or discharge was not medically

reasonable under the circumstances; and (3) the patient suffered personal harm as a direct

result." (Id. at p. 110.) Because the claim ultimately rests on proof the hospital did not

meet the prevailing standard of care, and does not require proof of an improper motive,

the Supreme Court concluded, "A claim under EMTALA for failure to stabilize is thus

necessarily 'based on professional negligence' within the meaning of MICRA—it

involves 'a negligent . . . omission to act by a health care provider in the rendering of

professional services' (Civ. Code, § 3333.2, subds. (a), (c)(2))—although it requires

more." (Ibid.) The "more" referenced by the Supreme Court is the hospital's actual

knowledge of an emergency medical condition (ibid.), which is an additional element but

which does not change the nature of the claim, i.e., negligence.

The fact that a plaintiff has brought a medical negligence claim, or that the same

facts would support a medical negligence claim as well as other claims, does not mean

those other claims will necessarily be subject to MICRA. "It is settled that additional

causes of action may arise out of the same facts as a medical malpractice action that do

95
not trigger MICRA." (Unruh-Haxton v. Regents of University of California (2008) 162

Cal.App.4th 343, 352 (Unruh-Haxton).) A court must determine whether MICRA is

triggered based on the specific cause of action and MICRA provision at issue. (Id. at p.

353; see Barris, supra, 20 Cal.4th at p. 116.)

Oasis contends the remaining causes of action against it—medical malpractice,

negligent failure to warn, and breach of fiduciary duty—are "based on professional

negligence" and subject to MICRA's noneconomic damage cap under Civil Code section

3333.2. We agree. Medical malpractice is the quintessential cause of action for

professional negligence against a health care provider. Engler's cause of action for

negligent failure to warn likewise rests on Oasis's negligence in rendering professional

services, i.e., its prescription and dispensation of the Polar Care 500 to Engler without

adequate warnings, and therefore falls within Civil Code section 3333.2 as well. On this

record, Engler's claim for breach of fiduciary duty is equivalent to a cause of action for

lack of informed consent, also a form of professional negligence. (Moore, supra, 51

Cal.3d at p. 129; see part V. A., ante.) These causes of action are therefore subject to

MICRA's noneconomic damage cap.

Similarly, Chao contends the causes of action against him—medical malpractice,

breach of fiduciary duty, and intentional concealment—are subject to MICRA's

noneconomic damage cap. We agree as to Engler's claims for medical malpractice and

breach of fiduciary duty for the reasons we have stated with respect to Oasis. However,

we disagree that MICRA's noneconomic damage cap applies to Engler's cause of action

for intentional concealment. That cause of action rests not on any negligent act or

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omission by Chao, but on Chao's intentional conduct. "[T]here is nothing in the

legislative history generally, or with regard to [Civil Code] section 3333.2 specifically, to

suggest that the Legislature intended to extend the $250,000 limitation to intentional

torts." (Perry v. Shaw (2001) 88 Cal.App.4th 658, 668 (Perry).) Although Perry limited

its holding to the battery claim at issue in that case, the application of its reasoning here is

clear: an intentional tort is not based on a "negligent act or omission" as required by the

statute. (Civ. Code, § 3333.2, subd. (c)(2); see Perry, p. 668 ["In that context, the only

rational conclusion is 'that the words "negligent" and "negligence" were carefully chosen

to apply only to causes of action based upon negligence.' "]; see also Waters, supra, 40

Cal.3d at p. 437 [holding that intentional tort based on sexual misconduct was "of

course, . . . not subject to . . . the $250,000 limit on noneconomic damages" even though

claim for professional negligence had also been pled]; Unruh-Haxton, supra, 162

Cal.App.4th at p. 355 ["Based on our review of the complaints, we conclude the patients'

claims for fraud, conversion, and intentional infliction of emotional distress related to

wrongful intentional conduct, not mere negligence."].)

Chao relies on authority interpreting other MICRA and related provisions that

apply more broadly. (See, e.g., Central Pathology Service Medical Clinic, Inc. v.

Superior Court (1992) 3 Cal.4th 181, 192-193 (Central Pathology) [holding that

plaintiffs' cause of action for fraud "aris[es] out of the professional negligence of a health

care provider" for purposes of Code of Civil Procedure section 425.13].) However,

"[b]ecause [Code of Civil Procedure] section 425.13 is not part of MICRA and employs

different language than MICRA's statutes, the Supreme Court repeatedly has rejected

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attempts to apply the standard it announced in Central Pathology to MICRA or other

statutory provisions." (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th

336, 350, citing Delaney v. Baker (1999) 20 Cal.4th 23, 39-40 and Barris, supra, 20

Cal.4th at pp. 115-116.)

We decline Chao's invitation to extend MICRA's noneconomic damage cap to

Engler's cause of action for intentional concealment. The damage cap expressly applies

to actions "based on professional negligence," i.e., acts or omissions falling below the

applicable standard of care. Engler's cause of action for concealment does not require

proof of a standard of care. Instead, it requires proof of failure to disclose and, most

critically, intent to deceive. It is not based on mere negligence. "[W]e have no reason to

conclude the 'Legislature intended to exempt intentional wrongdoers from liability by

treating such conduct as though it had been nothing more than mere negligence.' "

(Unruh-Haxton, supra, 162 Cal.App.4th at p. 356.) Similarly, we have no reason to

conclude the Legislature intended to impose a noneconomic damages cap on fraudulent

conduct merely because it occurred during medical treatment.

B. Proposition 51

Breg and Oasis contend Proposition 51, codified at Civil Code section 1431 et

seq., should apply to limit their liability for Engler's noneconomic damages in proportion

to their comparative fault as found by the jury. Again, although we will reverse the jury's

noneconomic damages award (see part III., ante), we must address this issue to give

guidance to the trial court should Bigler-Engler accept the reduced amount of

noneconomic damages.

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 "Proposition 51 modified the traditional common law ' "joint and several

liability" ' doctrine to limit an individual tortfeasor's liability for noneconomic damages to

a proportion of such damages equal to that tortfeasor's comparative fault." (Miller v.

Stouffer (1992) 9 Cal.App.4th 70, 82.) The relevant statute provides as follows: "In any

action for personal injury, property damage, or wrongful death, based upon principles of

comparative fault, the liability of each defendant for non-economic damages shall be

several only and shall not be joint. Each defendant shall be liable only for the amount of

non-economic damages allocated to that defendant in direct proportion to that defendant's

percentage of fault, and a separate judgment shall be rendered against that defendant for

that amount." (Civ. Code, § 1431.2, subd. (a).) "Thus, in an action subject to Proposition

51, each tortfeasor remains jointly and severally liable to the plaintiff for economic

damages, but is liable to the plaintiff for only its proportionate share of noneconomic

damages." (Bostick v. Flex Equipment Co. (2007) 147 Cal.App.4th 80, 90 (Bostick).)

The jury here determined that Chao was 50 percent responsible for Engler's harm,

Oasis was 10 percent responsible, and Breg 40 percent responsible. Oasis and Breg argue

that Proposition 51 requires any noneconomic damages award against them be limited to

their proportionate responsibility as determined by the jury. Bigler-Engler does not

respond. We conclude that Proposition 51 requires apportionment under the

circumstances here.

In Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322 (Safeway Stores), the

Supreme Court considered "whether the comparative fault principle . . . should be utilized

as the basis for apportioning liability between two tortfeasors, one whose liability rests

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upon California's strict product liability doctrine and the other whose liability derives, at

least in part, from negligence theory." (Id. at p. 325.) The Supreme Court determined

that principles of strict liability were compatible with apportionment according to fault:

"Nothing in the rationale of strict product liability conflicts with a rule which apportions

liability between a strictly liable defendant and other responsible tortfeasors." (Id. at p.

330.) Although strict liability and negligence theories are doctrinally very different, any

difficulties apportioning liability "are more theoretical than practical, and experience in

other jurisdictions demonstrates that juries are fully competent to apply comparative fault

principles between negligent and strictly liable defendants." (Id. at p. 331.) The

Supreme Court also concluded that a policy of apportionment avoided unjust results:

"Thus, if we were to hold that the comparative indemnity doctrine could only be invoked

by a negligent defendant but not a strictly liable defendant, a manufacturer who was

actually negligent in producing a product would frequently be placed in a better position

than a manufacturer who was free from negligence but who happened to produce a

defective product, for the negligent manufacturer would be permitted to shift the bulk of

liability to more negligent cotortfeasors, while the strictly liable defendant would be

denied the benefit of such apportionment." (Id. at p. 332.) This court applied these

principles in Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958 (Yamaha

Motor), where we allowed a strict products liability defendant to file a cross-complaint

for indemnity against a third party whose alleged negligence also contributed to plaintiff's

injury. (Id. at p. 971-972.)

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 Although Safeway Stores and Yamaha Motors involved indemnity actions, rather

than an application of Proposition 51, their reasoning supports apportionment here as

well. "The express purpose of Proposition 51 was to eliminate the perceived unfairness

of imposing 'all the damage' on defendants who were 'found to share [only] a fraction of

the fault.' ([Civ. Code,] § 1431.1, subd. (b).)" (DaFonte v. Up-Right, Inc. (1992) 2

Cal.4th 593, 603 (DaFonte).) "In sum, [Civil Code] section 1431.2 plainly limits a

defendant's share of noneconomic damages to his or her own proportionate share of

comparative fault." (Id. at p. 604.) "With respect to these noneconomic damages, the

plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained

from each person responsible for the injury." (Id. at p. 600.)

Moreover, "neither principles of comparative fault nor the policy underlying

Proposition 51 requires it to be interpreted to exclude its application in the strict liability

context." (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1196

(Arena); see Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 855 ["The repeated

judicial application of the term 'comparative fault' to claims and proceedings involving

strict products liability strongly suggests, if it does not prove, that the voters intended the

term [in Proposition 51] (or must be deemed to have intended it) to encompass such

claims."].) In Arena, the court held "that Proposition 51 is applicable in a strict liability

asbestos exposure case where multiple products cause the plaintiff's injuries and the

evidence provides a basis to allocate liability for noneconomic damages between the

defective products." (Arena, at p. 1198.) If Proposition 51 is applicable to multiple

defendants held liable based on a theory of strict liability, it follows that it is similarly

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applicable where, as here, one defendant is held liable in part on a theory of strict liability

and another defendant is held liable on theories of negligence.34

In sum, Safeway Stores established that where, as here, one responsible party is

liable under a negligence theory (Oasis) and another responsible party is liable at least in

part under a strict liability theory (Breg), a jury may still determine their comparative

fault. Proposition 51 requires that a defendant's liability not exceed its comparative fault.

Taken together, these principles compel the conclusion that Oasis and Breg's

responsibility for Engler's noneconomic damages must be limited to their proportionate

responsibility as determined by the jury: 10 percent for Oasis and 40 percent for Breg.

C. Intersection of MICRA and Proposition 51

As we have explained, MICRA and Proposition 51 apply in various ways to

Engler's causes of action. To provide guidance to the trial court on remand, we will

briefly discuss the calculations required to apply both limitations.

As to Breg, Proposition 51 limits its liability for Engler's noneconomic damages to

40 percent of the total. (Civ. Code, § 1431.2, subd. (a); Bostick, supra, 147 Cal.App.4th

at p. 90.) If Bigler-Engler accepts this court's reduction in noneconomic damages, Breg's

liability for those damages will be 40 percent of $1,300,000, or $520,000.

34 This case does not present a situation where several defendants in the chain of
distribution seek apportionment under Proposition 51 based on their relevant fault for
injuries caused by a single defective product. In such a situation, courts have held that
Proposition 51 does not apply and each defendant is liable for the plaintiff's full
noneconomic damages under traditional principles of joint and several liability. (Bostick,
supra, 147 Cal.App.4th at p. 95; Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th
618, 633.)

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 As to Oasis, both MICRA and Proposition 51 apply. In this situation, MICRA

applies first to limit Oasis's liability for noneconomic damages to a maximum of

$250,000, and then Proposition 51 applies to limit Oasis's liability to 10 percent of that

maximum. (See Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1102 ["[E]ach defendant

is only responsible for the percentage of noneconomic damages in proportion to his or her

proportionate fault. The $250,000 MICRA maximum for noneconomic damages must be

apportioned according to Proposition 51."]; Gilman v. Beverly California Corp. (1991)

231 Cal.App.3d 121, 129-130; see also Rashidi v. Moser (2014) 60 Cal.4th 718, 727.) If

Bigler-Engler accepts this court's reduction in noneconomic damages, Oasis's liability for

those damages will be 10 percent of $250,000, or $25,000.

VIII. Bigler-Engler's Appeal: Code of Civil Procedure Section 998

Bigler-Engler contends the trial court erred by granting Chao's motion to tax costs

claimed under Code of Civil Procedure section 998. The court determined that Engler's

settlement offer did not comply with that statute because it did not include an acceptance

provision. (Code Civ. Proc., § 998, subd. (b).) Although we will reverse the jury's

compensatory damages award in part and remit the award conditioned on Bigler-Engler's

acceptance of the reduced amount, we consider this issue to provide guidance to the trial

court on remand and because the modified amount still exceeds Engler's settlement offer

of $1,000,000. We review the court's determination under Code of Civil Procedure

section 998 de novo. (Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280,

285 (Rouland).)

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 The statute provides, in relevant part, as follows: "The written offer shall include

a statement of the offer, containing the terms and conditions of the judgment or award,

and a provision that allows the accepting party to indicate acceptance of the offer by

signing a statement that the offer is accepted." (Code Civ. Proc., § 998, subd. (b), italics

added.) It is well settled that if an offer fails to include an acceptance provision, the

offering party may not obtain the benefits of the statute. (Boeken v. Philip Morris USA

Inc. (2013) 217 Cal.App.4th 992, 1001; Perez v. Torres (2012) 206 Cal.App.4th 418, 424

(Perez); Puerta v. Torres (2011) 195 Cal.App.4th 1267, 1273 (Puerta).) Engler's offer

did not include an acceptance provision. It therefore did not comply with the statute, and

the court did not err by granting Chao's motion to tax costs claimed under the statute.

Bigler-Engler attempts to distinguish these cases by claiming that Chao

affirmatively rejected Engler's settlement offer (and discouraged any further offers) rather

than simply ignoring it. But the statute imposes a mandatory requirement: "The written

offer shall include . . . a provision that allows the accepting party to indicate acceptance

of the offer . . . ." (Code Civ. Proc., § 998, subd. (b).) "[W]e interpret the mandatory

requirements of the statute without regards to what occurred in this particular case or the

tactics of a party." (Boeken, supra, 217 Cal.App.4th at p. 1004.) Engler's failure to

include an acceptance provision renders her offer invalid under the statute. (Ibid.; see

Perez, supra, 206 Cal.App.4th at p. 424 ["The plain language of the statute requires all

offers to contain an acceptance provision."]; Puerta, supra, 195 Cal.App.4th at p. 1273

["The offer at issue here contained nothing regarding acceptance, only the terms of the

offer itself and its expiration date. It was therefore invalid under the plain language of

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the statute, regardless of whether [the opposing party] ever intended to accept the offer or

not."].) It is irrelevant whether Chao ignored the offer or, as here, rejected it.

Bigler-Engler also claims Chao is equitably estopped from arguing that Engler's

offer was invalid. Even assuming that Chao has not forfeited this argument by failing to

raise it in the trial court, we disagree that equitable estoppel applies here. "The doctrine

of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a

person may not deny the existence of a state of facts if he intentionally led another to

believe a particular circumstance to be true and to rely upon such belief to his detriment.

The elements of the doctrine are that (1) the party to be estopped must be apprised of the

facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party

asserting the estoppel has a right to believe it was so intended; (3) the other party must be

ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury."

(Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) In order to establish

equitable estoppel under the circumstances here, therefore, Bigler-Engler must show that

(1) Chao knew Engler's offer was invalid; (2) Chao intended that his rejection would be

viewed as a statement that the offer was not invalid; (3) Engler did not know the offer

was invalid; and (4) Engler relied on Chao's rejection to her injury. Bigler-Engler has not

established these elements. For example, Bigler-Engler has not shown that Chao knew

the offer was invalid or that Chao intended that his rejection would be seen as a statement

that the offer was not invalid.

Battuello v. Battuello (1998) 64 Cal.App.4th 842, on which Bigler-Engler relies, is

distinguishable. In that case, the plaintiff alleged "that during the settlement negotiations

105
which followed his father's death, [defendant] convinced him not to file a timely suit by

telling him that he would receive the vineyard [that was the subject of the dispute]. By

the time [plaintiff] learned that [defendant's] promise was false, the statute of limitations

had passed." (Id. at p. 848.) The court concluded that plaintiff's allegations were

sufficient to support a claim of equitable estoppel. (Ibid.) Here, by contrast, Chao did

not make any false statement or promises, nor is there evidence he intended to deceive

Engler into believing her settlement offer was not invalid. Chao simply rejected it,

describing the offer as Engler had described it. Under the facts of this case, equitable

estoppel does not apply.

DISPOSITION

The judgment is reversed in part as to Engler's causes of action for strict liability

design defect against Oasis, strict liability failure to warn against Oasis, intentional

concealment against Breg, and intentional misrepresentation against Chao. The superior

court is directed to enter judgment in favor of the relevant defendant on those claims.

The judgment as to Engler's noneconomic compensatory damages as to all three

defendants and punitive damages against Chao and Breg is also reversed. The superior

court shall conduct a new trial on noneconomic compensatory damages as to all three

defendants and punitive damages as to Chao only, unless Bigler-Engler consents to a

reduction of the jury's noneconomic compensatory damages award to $1,300,000 and the

jury's punitive damages award against Chao to $150,000. Bigler-Engler's consent must

be in writing and filed with the clerk of the superior court and served on all parties within

30 days of the date this court's remittitur issues. If Bigler-Engler consents to both

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reductions, the superior court shall enter judgment consistent with this opinion. If Bigler-

Engler consents to a reduction in noneconomic compensatory damages only, the superior

court shall accept that consent, conduct a new trial on the issue of punitive damages

against Chao, and conduct further proceedings consistent with this opinion. In all other

respects, the judgment is affirmed. The parties shall bear their own costs on appeal.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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