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''Unprofessional'' Lawyer Wins Jury Verdict for Surgical Device Manufacturer

Tuesday, March 20, 2012
Michael F. Bahler | Bloomberg Law Garcia v. ConMed Corp., No. H034778, 2012 BL 57710 (Cal. Ct. App. Mar. 8, 2012) In a design defect suit brought on behalf of boy whose breathing tube caught fire during a tonsillectomy, the California Court of Appeal upheld a jury verdict in favor of a medical device maker despite the company's inflammatory closing argument. Andrew Garcia, a minor, underwent a tonsillectomy and adenoidectomy at San Jose Medical Center. A breathing tube was inserted down his throat to administer oxygen and anesthetic gas. Dr. Douglas Phan performed the surgery using a pen-shaped instrument that cuts tissue and stimulates coagulation and a second instrument that removes fluids secreted from tissue. Both electrocautery devices were powered by a medical generator manufactured by ConMed Corp. While Phan was operating, Garcia's breathing tube caught fire, ultimately causing Garcia to sustain brain damage. Garcia's family subsequently sued both ConMed and Phan in California state court, alleging that ConMed's generator contained a design defect because it permitted the two surgical instruments to be activated simultaneously. At trial, the family's fire reconstruction expert testified that the fire was caused when ConMed's generator activated the suction device, which then came into contact with the breathing tube. The family's product design expert opined that a single-use generator was safer since it would prevent two electrodes from running at the same time. The expert also faulted the manufacturer for not warning of the dangers of simultaneous activation. ConMed, in turn, submitted evidence that assigned all the blame for the accident on Phan. Its expert testified that simultaneous activation was a positive feature of the generator, not a defect, and that using multiple single-activation generators also posed a fire risk. In her closing argument, ConMed's attorney, Genese Dopson, told the jury that the family had opted to sue her client because "I think you know. I think you've all heard the term. Two words. Very simple. Deep pockets." She complimented the jury's "very patriotic" participation in the proceedings and stated that "if you just look at what's going on in our country today . . . [t]he important thing is you cannot just repackage the facts and sell them off as if everything is going to be okay because there are consequences to all of us—to you." Dopson then contended that the family was neglecting Garcia's learning disability: "And, when you give you[r] verdict in favor of [defendant], ladies and gentlemen, you're not denying [plaintiff]. You're sending a message to this family. And the message is, Help him. Help him learn so that he can learn to help himself." The family moved for a mistrial on the basis of these statements, claiming that Dopson was arguing for jury nullification and that she thought she was "bulletproof because [the judge would not declare] a mistrial." While the trial court characterized Dopson's conduct as "wrong" and "unprofessional," it refused to grant a mistrial. Instead, it instructed the jury to disregard the overheated rhetoric and focus on the evidence. The jury returned a verdict that cleared ConMed of responsibility for the accident and found Phan liable for approximately $750,000. The family, who had been seeking over $15 million in damages, moved for a new trial. When the motion was denied, they appealed. The California Court of Appeal wrote that "a conclusion that Dopson's argument to the jury amounted to misconduct is unavoidable," but stated that there was nothing in the record to suggest that the jury disregarded the instructions to ignore her remarks. It observed that the evidence at trial was conflicting and vigorously disputed, and the jury could have reasonably found that the generator's "simultaneous activation was a beneficial feature rather than a defect." Concluding that it was not reasonably probable that the family obtained a less favorable verdict as a result of the closing argument, the Court affirmed the judgment. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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