Metropolitan News-Enterprise


Monday, January 9, 2017


Page 1


In Opinion on Rehearing:

Court of Appeal Says $12.7 Million Award Was Excessive

Orders New Trial on Damages Unless Plaintiff Accepts $1.45 Million


By a MetNews Staff Writer


The Fourth District Court of Appeal, after granting a rehearing in a case in which it voided a $12.7 million verdict, on Friday issued a slightly revised opinion with no change in the result.

No further proceedings are necessary, the appeals court said, if the appellant agrees to a reduction to $1.45 million.

The jury verdict, rendered in 2012, was for $5.2 million in compensatory damages—comprised of $68,000 in economic compensatory damages and $5.1 in noneconomic compensatory damages—and $7.5 million in punitive damages. The verdict was in favor of a young woman who suffered a scar and other ill effects from use of a cooling device.

The appeals court said, in an opinion by Justice Judith L. Haller of Div. One, that jurors were inflamed by the emotional rhetoric of plaintiff Whitney Joy Engler’s attorney, Marc O. Stern, in part causing an excessive assessment of noneconomic and punitive damages.

The original opinion, filed Oct. 28, was vacated on Nov. 22. Haller explained in a footnote that the rehearing was granted to allow argument on a minor aspect of the opinion on which argument had not previously been received and said that “this opinion is substantively identical to our initial opinion.”

Virginia Bigler-Engler, mother of the plaintiff, was substituted as appellant, in her capacity of administratrix of her daughter’s estate. Engler, at the age of 27, was murdered in 2015 by her roommate, who then committed suicide.

The action was against Breg, Inc., which manufactured the cooling device, Polar Care 500, Dr. David Chao, who prescribed it, and his a medical group, Oasis MSO, Inc.

Jurors assessed punitive damages in the amount of $7 million against Berg and $500,000 against Chao. Haller said that while there was evidence that Chao intentionally concealed his financial interest in the Polar Care 500 device—justifying punitive damages, though not in the amount the jury set—but that there was no basis for imposing any liability on Berg for concealment, nullifying the punitive damage award against it.

Lawyer’s Misconduct

Haller wrote:

“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….Key portions of Stern’s opening statement and closing argument, as well as witness examinations, concerned injuries suffered by individuals other than Engler….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.”

She added that “episodes of overheated, emotional rhetoric reinforce our conclusion,” quoting Stern as telling jurors:

“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.”

Haller also quoted as reading a definition of “branded” as “an identifying mark burned on livestock, criminals or slaves with a branding iron,” adding:

“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.”

Liability Established

The jurist said that while Stern’s oratory led to excessive damages, the jury was justified in finding liability. She wrote:

“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.”

Explaining why the panel was setting forth the amount it believes is appropriate, Haller said:

“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….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 the interests of justice and judicial economy, bringing closure to this matter is appropriate.”

The opinion declares:

“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….If Bigler-Engler consents to both reductions, the superior court shall conduct any further proceedings that are necessary and appropriate and 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.”

The case is Bigler-Engler v. Breg, Inc., D063556.


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