New Legal Developments

This Ain’t L.A. Law People — Unprofessional Conduct Does Not Pay — California Attorney Ethics — Civil

Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276

Plaintiff suffered a knee injury that required surgery. Her doctor prescribed a cooling apparatus, the Polar 500. The manufacturer of the Polar 500 had numerous complaints of injury from its product (NFCI: “nonfreezing cold injury”). The device caused necrosis of plaintiff’s knee tissue, excruciating pain and scarring, necessitating two more surgeries that Plaintiff’s unemployed father had to pay for out-of-pocket.
The manufacturer and the doctor waged a scorched-earth 6-year pitched battle against this child. At the end of the day, the jury stuck the defendants with $5 million in pain-and-suffering damages, and $7.5 million in punitive damages.
Held: Damages were excessive. Despite making a finding of “no prejudice”, the court seized on Plaintiff’s counsel’s many inflammatory and, at times, disrespectful remarks about the defendants, and the trial court, made in front of the jury. Despite the fact the trial judge stated on the record that those remarks were hurting the Plaintiff’s case, the trial judge nevertheless did an about-face when the corporate defendant asked him to, and contradicted himself, ruling that those same comments helped the Plaintiff’s case by inflaming the jury against the manufacturer.  The Court of Appeal disagreed, but reduced damages, and eliminated punitive damages, on other grounds.
At the end of the day, Plaintiff’s counsel was responsible to be professional throughout the proceedings. His antics gave the trial judge ammunition to shoot down his client.