Products Liability-Record $70 Million Punitive Damage Award Pending Appeal

Kuhlmann et al. v. Ethicon Endo-Surgery Appellate Case No. A147945, Court of Appeal, First District

A record high $70 million punitive damages verdict against Johnson & Johnson in a lawsuit over a defective surgery stapler is up on appeal.  Johnson & Johnson contends the evidence does not support the jury’s finding  the stapler manufacturer acted with malice. If the verdict is allowed to stand, it will be the highest punitive award affirmed by a California court. Johnson & Johnson’s attorneys claim the amount is excessive, as it far exceeds what courts have approved for cases involving far more reprehensible alleged misconduct, such as harm caused by asbestos or the tobacco industry. During oral argument on May 24, 2018 in San Francisco, the justices seemed concerned by the fact Johnson & Johnson was aware of a significant amount of complaints about the staplers, but failed to warn surgeons. This “turning of a blind eye” amounted to aggravated conduct justifying the award, as plaintiffs’ attorneys argued. Johnson & Johnson reminded the court that damages must be proportional to the circumstance, and there was no evidence here that it intended to harm people. A decision on whether to remand the case to the trial court for a new trial or reduce the award is forthcoming. Interested readers can follow the progress of the case by going here: http://appellatecases.courtinfo.ca.gov/email.cfm?dist=1&doc_no=A147945

Medical Malpractice- “Certainty” of Future Damages Not Required in Wrongful Death Case

Yuanda Hong et al. v. Long-Dei Liu (May 15, 2018) Not Officially Published, 2018 WL 2213912, Court of Appeal, Fourth District

The Court of Appeal recently affirmed a $6.2 million award against a doctor in a suit against the doctor and hospital for allegedly causing a woman’s death during childbirth, when it failed to control her bleeding during a c-section procedure. The jury’s total award was $9.1 million in economic damages, which was offset by a $3.2 million settlement that the hospital paid prior to the trial.  The Court of Appeal rejected the doctor’s arguments plaintiffs were required to prove their future damages “were certain to occur”and the verdict was not supported by substantial evidence.  It approved CACI No. 3921, a standard jury instruction, as the proper measure of economic damages and relied on the opinion of the Plaintiff’s expert, who opined the doctor did not take the proper steps to stop the patient’s bleeding.  The Court also found the jury’s determination the hospital was 75% at fault and the doctor 25% was supported by substantial evidence. Because the economic damages are subject to joint & several liability under California law, the doctor may pay far more than a quarter of the award. The doctor plans to file a petition for rehearing in the coming weeks.

Personal Injury-Plaintiff Judgment for $4.2 million Reversed Based on Prejudicial References to Irrelevant Evidence

Davila v. Derby et al. (May 4, 2018) Not Officially Published, 2018 WL 2077818, Court of Appeal, First District

A Court of Appeal recently reversed a judgment for plaintiff after the jury found a construction company 100% at fault for a subcontractor employee’s personal injury damages of $4.2 million.  The Court of Appeal found multiple references to an indemnity agreement had prejudiced the jury. The Court determined the agreement was irrelevant and should not have been referenced repeatedly before the jury.  The agreement provided the subcontractor’s company would pay for all of the damages if the jury found it even 1% at fault. The references to the indemnity clause in the agreement and the possibility of shifting damages to the subcontractor were also found to be prejudicial. The Court noted that “as is well-recognized, evidence that a defendant is insured may cause the jury, when deciding issues of fault or damages, to consider improperly that another entity will ultimately bear the loss.” The agreement was mentioned repeatedly by the attorneys during jury selection, through opening statements, throughout the trial and in closing arguments.  The appellate panel found this highly inappropriate and reversed the judgment remanded the case for a new trial.

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