Bigler-Engler v. Berg, Inc. involves a cold-therapy device that was prescribed to and used by a 15-year-old female student athlete after she suffered a sports-related injury and had to undergo knee surgery. The cold therapy device was supposed to help speed her recovery. The device, “Polar Care 500,” is intended to deliver cold therapy to the site of the surgery, similar to what might be accomplished with an ice pack or a bag of frozen vegetables. It operates continuously for 11 hours, until the ice has to be refilled. The girl’s parents were told it would decrease her risk of infection. But the plaintiffs alleged the doctor, his employer, and the manufacturer failed to disclose the risks of using this device, even though they were aware of those risks. The medical group and the doctor both benefited from the sales and rentals of these devices, but they did not disclose that fact to the plaintiff or her parents. (It was also later revealed the doctor was a shareholder in his employer’s medical group, and he was friendly with the cold-therapy device manufacturer executives, who took him on golf outings, dinners, and other events.)
Although the surgery was initially successful, her use of the cold-therapy device reportedly resulted in severe pain and ultimately resulted in dead tissue around her knee that required immediate and specialized surgery. After that, she needed nine additional surgeries to clean and close the wounds. These procedures were extremely painful and left her with permanent, extensive scarring. Scar reduction surgeries followed, for which the plaintiff paid out-of-pocket. She also continued to suffer from weakness, pain, and other functional limitations.
The plaintiff filed a lawsuit against the doctor, the doctor’s employer, and the manufacturer, alleging medical malpractice, failure to warn, breach of contract, and other claims. Years of litigation followed, concluding in an eight-week trial in 2012.
The jurors decided the personal injury case against the doctor on the claims of medical malpractice, breach of fiduciary duty, intentional misrepresentation, and intentional concealment. They also found against the employer on the claims of medical malpractice, design defect, failure to warn, and breach of fiduciary duty. Against the manufacturer, the jurors found in favor of the plaintiff on the claims of design defect, failure to warn, and intentional concealment. The jurors also found all three should be subject to punitive damages. The jurors awarded $5.2 million in compensatory damages and $7.1 million in punitive damages.
The manufacturer appealed to the California Court of Appeal, Fourth Appellate District, Division One, arguing the trial court wrongly allowed testimony on 140 previous incidents in which it had allegedly received reports of the device causing injuries. Similar claims of wrongly admitted testimony were made by the defendant doctor.
(Although the plaintiff survived the injury suffered in this case, she was murdered in an unrelated incident before the appeal could proceed. Her parents proceeded with her claim as representatives of her estate.)
Ultimately, the appeals court reversed in part, finding the jury’s verdict as to several of the claims was not supported by the evidence, and that meant portions of the punitive damages award were reversed or deemed excessive. These matters will need to be considered at a new trial, the appeals court ruled, unless the plaintiff’s parents agree to accept $1.45 million in compensation. It’s not yet clear whether they will do so or whether the case will be weighed at another trial.
Contact the Carolina personal injury lawyers at the Lee Law Offices by calling 800-887-1965.
Bigler-Engler v. Berg Inc., Jan. 16, 2017, California Court of Appeal, Fourth Appellate District, Division One
More Blog Entries:
Study: Cosmetics for Black Consumers Less Safe, Jan. 7, 2017, Charlotte Injury Attorney Blog