Filed 11/19/14




                      CERTIFIED FOR PARTIAL PUBLICATION*

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

CHRISTINE SCOTT et al.,
                                                                   F066039
        Plaintiffs and Appellants,
                                                           (Super. Ct. No. CV-266034)
                 v.
                                                                  OPINION
C. R. BARD, INC.,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
        Law Offices of Eugene R. Lorenz and Eugene R. Lorenz; and Elaine Houghton for
Plaintiffs and Appellants Christine Scott and Roy Scott.
        Reed Smith, Michael K. Brown, Raymond A. Cardozo, Eric J. Buhr, Kevin G.
Lohman and Anne M. Grignon for Defendant and Appellant C. R. Bard, Inc.



*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts 1.C.c. and 1.C.d. of the
DISCUSSION.
       Defendant C.R. Bard, Inc. (Bard) manufactured and sold polypropylene mesh kits
to treat women with pelvic organ prolapse. Bard’s product was surgically implanted in
plaintiff Christine Scott. Christine Scott suffered serious complications and filed the
underlying lawsuit against Bard for personal injuries. Plaintiff Roy Scott, Christine
Scott’s husband, sought damages for loss of consortium.
       The jury found Bard was negligent and awarded the Scotts $5.5 million in
damages. The jury also found that Christine Scott’s surgeon, a nonparty, was 40 percent
at fault and the trial court reduced the award accordingly.
       On appeal, Bard contends the three negligence theories submitted to the jury were
erroneous as a matter of law. Bard alternatively argues that the verdict is not supported
by substantial evidence. Bard additionally asserts it was denied a fair trial due to the
admission of evidence of postsurgery events, attorney misconduct and juror misconduct.
In their appeal, the Scotts argue that the apportionment of fault to Christine Scott’s
surgeon cannot stand because it was based on incorrect jury instructions.
       The negligence theories were properly submitted to the jury and the negligence
finding is supported by substantial evidence. Further, Bard was not denied a fair trial.
The Scotts acquiesced in the giving of incomplete jury instructions on the surgeon’s fault
when it was in their best interest for the jury to be properly instructed on that issue. Thus,
the Scotts are estopped from asserting this instructional error on appeal. Accordingly, the
judgment is affirmed.
                                     BACKGROUND
1.     Pelvic organ prolapse.
       Pelvic organ prolapse occurs when a woman has weak vaginal walls that allow
adjoining organs, the uterus, the bladder, and/or the rectum, to drop into the vaginal
canal. This condition can cause organ dysfunction, such as incontinence, pelvic pressure




                                              2.
and pain. Pelvic organ prolapse can significantly impact a woman’s quality of life and, in
severe cases, cause a woman to become physically disabled.
       If noninvasive treatments, such as exercises, are not effective, there are various
surgical options for pelvic organ prolapse. For example, repairs can be done using the
patient’s own tissue. However, because poor tissue causes the problem, the procedure
using that tissue has a high failure rate over time.
       Another repair option is to use polypropylene mesh to support the vagina. One
way to implant this mesh is through an abdominal incision. Beginning around 2003,
surgeons began using kits to implant the mesh transvaginally, i.e., through the vagina. At
issue here are two such transvaginal mesh kits sold by Bard.
2.     Bard’s development and sale of the Avaulta products.
       In 2005, Sofradim, a French company, developed “Ugytex Dual Knit Mesh” to
repair pelvic organ prolapse. Ugytex is a polypropylene mesh that has a soft center
section with stronger sections on the side. Bard and Sofradim entered into an agreement
for Bard to sell Ugytex in the United States under the name Avaulta.
       Thereafter, Bard developed its own transvaginal mesh kit called “Avaulta Solo.”
This design is different from the Sofradim product. Avaulta Solo has a soft knit center
graft with four stronger knit arms that are pulled back out through the body to anchor the
graft in place. The kit also includes a large curved needle called a trocar that is used to
snare and guide the mesh.
       In 2007, Bard started selling “Avaulta Plus.” The only difference between
Avaulta Solo and Avaulta Plus is that Avaulta Plus has a collagen layer on the center
portion of the mesh. These products were sold by prescription.
       The Food and Drug Administration (FDA) regulates transvaginal mesh as a
medical device. Before placing the Avaulta products on the market, Bard obtained a pre-
market clearance from the FDA. A clearance means the FDA has determined that the


                                              3.
device is substantially similar to a device that is already on the market. Avaulta Solo and
Avaulta Plus were cleared on the ground that they were substantially equivalent to the
Sofradim product, Ugytex/Avaulta. In contrast, FDA approval means the FDA has
determined that the product is safe and effective.
       In developing Avaulta Plus, Bard performed functional, mechanical, biological,
quality and biocompatibility tests. As part of the testing, pieces of mesh were placed in
rats, rabbits and sheep. However, the stiffer mesh arms were not implanted in the
animals. The product was also tested on cadavers.
3.     Bard’s physician training program.
       As part of marketing its products, Bard offered physicians training through its
MDU Physician Education Continuum. The education options included large classes,
smaller regional labs, and surgery observations.
       In February 2007, Christine Scott’s gynecologist, Dr. Tillaikarasi Kannappan,
attended a one day session relating to Avaulta taught by Dr. Susan Tate, a
urogynecologist. The session included a power point presentation and a cadaver lab.
During the cadaver lab, Dr. Kannappan was shown the proper technique for implanting
Avaulta but was not instructed on either removing mesh or diagnosing when mesh should
be removed. According to Dr. Kannappan, she was told there could be complications but
that they were minimal. Dr. Kannappan recalled being told Avaulta could cause minimal
erosion but that the problem could be dealt with as an outpatient procedure in the office
by trimming the mesh. Dr. Kannappan’s overall impression was that Avaulta was very
safe to use and was a superior product. She was not informed that Avaulta should not be
used in sexually active women or for a mild prolapse. Dr. Kannappan was provided with
the Avaulta instructions for use and a DVD showing another doctor’s implant technique.




                                             4.
4.     Christine Scott’s surgeries and complications.
       Christine Scott sought medical care for urinary incontinence she experienced
while participating in sports. She was also diagnosed with mild pelvic prolapse of the
bladder and rectum. As a remedy, Dr. Kannappan recommended surgical insertion of a
mesh sling for the incontinence and surgical repair with two Avaulta Plus mesh kits,
anterior and posterior, for the prolapse.
       In January 2008, Dr. Kannappan performed surgery on Christine Scott and
implanted the Avaulta Plus anterior and posterior mesh and a mesh sling. Avaulta Plus
was not on the market when Dr. Kannappan attended the Bard training session in 2007.
But, about a week before Christine Scott’s surgery, Dr. Kannappan watched a DVD on
the surgical technique for Avaulta Plus. However, Dr. Kannappan did not read the
instructions for use.
       Postsurgery, Christine Scott experienced complications. She could not urinate,
had to self-catheterize, and was in pain. Dr. Kannappan operated again in February 2008
but this did not resolve the urination problem. Dr. Gregory Klis, Dr. Kannappan’s
colleague at the same practice, performed a third surgery on Christine Scott in May 2008
and a fourth surgery in July 2008. Christine Scott developed an infection and in
November 2008, Dr. Klis conducted a fifth surgery to irrigate an abscess.
       Dr. Klis referred Christine Scott to UCLA urogynecologist Dr. Christopher
Tarnay. Dr. Tarnay conducted a sixth surgery to extrude more mesh and release mesh
tension. Thereafter, Dr. Tarnay discovered that the mesh had eroded into Christine
Scott’s rectal area. Erosion occurs when the mesh does not stay in place but rather goes
into a different space. Christine Scott then underwent her seventh and eighth surgeries
performed by Dr. Tarnay and Dr. James Yoo, a colorectal surgeon.
       Christine Scott is often in excruciating pain due to nerve damage, has pain during
sexual intercourse, and has lost control of her bowels.


                                             5.
5.     The FDA’s public health notifications and requests for postmarket studies.
       In October 2008, after Christine Scott’s surgery, the FDA issued a public health
notification to health care practitioners. This notification discussed risks of transvaginal
mesh procedures and recommended physicians “‘[o]btain specialized training for each
mesh placement technique,’” and “‘[b]e vigilant for potential adverse events from the
mesh, especially erosion and infection.’” The notification also suggested warning
patients that the implantation of surgical mesh is permanent and that some complications
associated with mesh may require additional surgery that may or may not correct the
complication.
       The FDA issued a second public health notification in July 2011. This notification
repeated what was in the October 2008 public health notification and added that serious
complications associated with transvaginal mesh surgeries are not rare.
       In January 2012, the FDA wrote letters to approximately 30 manufacturers,
including Bard, requesting that they conduct postmarket clinical studies or collect clinical
data for transvaginal mesh. Bard responded that it would like to take the Avaulta product
off the market. According to Bard, removing Avaulta Plus from the market was purely a
business decision based on the market having moved to the next generation of products.
Bard did not decide to stop selling Avaulta Plus because of any concern with the safety
and efficacy of the product.
6.     The underlying litigation.
       In January 2009, Christine Scott and her husband, Roy Scott, filed a complaint for
negligence, strict product liability, negligent misrepresentation and fraud against Bard,
Dr. Kannappan, and Dr. Klis. The Scotts dismissed the action as to Dr. Klis. The action
was bifurcated with the trial on the causes of action against Dr. Kannappan to follow the
trial on the causes of action against Bard.




                                              6.
       The trial court heard motions in limine two months before trial. One of the trial
court’s rulings barred evidence of postsurgery regulatory actions, including the FDA’s
2008 and 2011 public health notices and 2012 letter requesting clinical trials.
Nevertheless, the trial court advised the parties that with the in limine motions they “are
not pouring any concrete” and that the rulings would “remain in place until and if
something changes in the evidence.”
       During trial, the court reversed its pretrial ruling and allowed the Scotts to present
evidence of the FDA’s public health notices and 2012 letter. Bard moved for a mistrial,
which the trial court denied. Alternatively, Bard requested a six-week continuance so it
could recall certain witnesses. The trial court denied this motion as well.
       Bard moved for a directed verdict on all claims. The trial court directed a verdict
on manufacturing defect, fraud and breach of warranty, but denied the motion on
negligence and failure to warn.
       The jury returned a special verdict finding Bard was not liable for failure to warn.
However, the jury found Bard was negligent and that its negligence was a substantial
factor in Christine Scott’s harm. The jury awarded Christine Scott $5 million in damages
and awarded Roy Scott $500,000 for loss of consortium. The jury found Dr.
Kannappan’s negligence was not a substantial factor in causing the Scotts’ harm but
assigned 40 percent fault to her. Based on this finding, the trial court reduced the Scotts’
noneconomic damages by 40 percent and entered judgment for $3.31 million for
Christine Scott and $300,000 for Roy Scott.
       Bard moved for judgment notwithstanding the verdict and for a new trial. Bard
argued it was denied a fair trial because the trial court reversed its in limine ruling on the
FDA’s regulatory actions, the Scotts’ counsel engaged in continuous misconduct, and one
juror committed multiple acts of misconduct. The trial court denied these motions.




                                              7.
                                      DISCUSSION
1.     Bard’s appeal.
       Bard contends the trial court submitted erroneous negligence theories to the jury.
Further, Bard argues, none of these theories are supported by substantial evidence. Bard
additionally asserts the trial was tainted by evidence of postsurgery events, attorney
misconduct and juror misconduct. We address the attorney misconduct and juror
misconduct issues in the unpublished portion of this opinion.
       A. The negligence theories were properly submitted to the jury.
              a. Negligent design.
       The jury was instructed on negligent design as follows:

              “Christine Scott also claims that she was harmed by C.R. Bard’s
       negligence and that it should be held responsible for that harm. To
       establish this claim, Christine Scott must prove all of the following:

              “1. That C. R. Bard designed the Avaulta Plus;

              “2. That C. R. Bard was negligent in designing the Avaulta Plus;

              “3. That Christine Scott was harmed; and

              “4. That C. R. Bard’s negligence was a substantial factor in causing
       Christine Scott’s harm.”
On the basic standard of care, the jury was instructed:

              “Negligence is the failure to use reasonable care to prevent harm to
       oneself or to others.

               “A person can be negligent by acting or by failing to act. A person
       is negligent if he or she does something that a reasonably careful person
       would not do in the same situation or fails to do something that a
       reasonably careful person would do in the same situation.

            “You must decide how a reasonably careful medical device
       manufacturer would have acted in C. R. Bard’s situation.”
On the standard of care for a product designer, the jury was instructed:


                                             8.
              “A designer of a product is negligent if it fails to use the amount of
       care in designing the product that a reasonably careful designer would use
       in similar circumstances to avoid exposing others to a foreseeable risk of
       harm.

              “In determining whether C. R. Bard used reasonable care, you
       should balance what C. R. Bard knew or should have known about the
       likelihood and severity of potential harm from the product against the
       burden of taking safety measures to reduce or avoid the harm.”
       With a claim based on products liability, the plaintiff may seek recovery on one of
two theories, strict liability in tort or negligence. (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 478.) Products liability focuses responsibility for defects, whether
negligently or non-negligently caused, on the manufacturer of the completed product.
(Id. at pp. 478-479.) Thus, under either theory, the plaintiff must prove that a defect
caused the injury. This claimed defect may be either in the design or manufacture of the
product. However, under a negligence theory, the plaintiff must also prove that the
product defect was due to negligence of the defendant. (Id. at p. 479.)
       Relying on Brown v. Superior Court (1988) 44 Cal.3d 1049 (Brown) and Hufft v.
Horowitz (1992) 4 Cal.App.4th 8 (Hufft), Bard argues that the negligent design claim is
barred because Bard is a medical device manufacturer. According to Bard, after the trial
court directed a verdict on manufacturing defect and the jury found Bard was not liable
for failure to warn, the “case against Bard should have ended there.”
       In Brown, the court held “that a manufacturer is not strictly liable for injuries
caused by a prescription drug so long as the drug was properly prepared and accompanied
by warnings of its dangerous propensities that were either known or reasonably
scientifically knowable at the time of distribution.” (Brown, supra, 44 Cal.3d at p. 1069,
fn. omitted.) In Hufft, the court applied this strict liability restriction to implanted
medical devices. (Hufft, supra, 4 Cal.App.4th at pp. 19-20.)




                                               9.
       The Brown court justified this exemption based on the special considerations that
set prescription drugs sufficiently apart from other products. The court noted that,
although drugs might be safer if they were withheld until more dangerous side effects
were revealed, “[p]ublic policy favors the development and marketing of beneficial new
drugs, even though some risks, perhaps serious ones, might accompany their
introduction, because drugs can save lives and reduce pain and suffering.” (Brown,
supra, 44 Cal.3d at p. 1063.) If drug manufacturers were subject to strict liability, they
might be reluctant to develop and market beneficial drugs because of fear of large
adverse monetary judgments and the expense of strict liability insurance, costs that could
place the medication beyond the reach of those who need it most. (Ibid.)
       Bard is correct that it cannot be held strictly liable for a design defect in Avaulta
Plus. However, being immune from strict liability does not in itself bar a negligence
claim. Unlike negligence, strict liability eliminates the necessity for the injured party to
prove that the manufacturer of the product was negligent. Rather, strict liability focuses
not on the conduct of the manufacturer but on the product itself and holds the
manufacturer liable if the product was defective. (Brown, supra, 44 Cal.3d at p. 1056.)
       Accordingly, a manufacturer such as Bard may be subject to liability for
negligence. (Brown, supra, 44 Cal.3d at p. 1069, fn. 12; Hufft, supra, 4 Cal.App.4th at p.
23.) In Brown, the court specifically noted that its conclusion did not mean that drug
manufacturers are free of all liability for defective drugs. “They are subject to liability
for manufacturing defects, as well as under general principles of negligence, and for
failure to warn of known or reasonably knowable side effects.” (Brown, supra, 44 Cal.3d
at p. 1069, fn. 12, italics added.)
       Therefore, here, the trial court did not err in submitting the question of whether
Bard was liable for negligently designing Avaulta Plus to the jury. The jury was properly
instructed on general negligence and the need to determine whether Bard used the


                                             10.
amount of care in designing the product that a reasonably careful medical device
manufacturer would use.
             b. Negligent training.
      The jury was instructed on negligent undertaking as follows:

              “The manufacturer of a prescription medical device has no duty to
      train a physician in using its medical device. However, if a manufacturer
      undertakes to train physicians and fails to exercise reasonable care in that
      undertaking, it may be held liable for harm caused to third parties as a
      result of its negligent undertaking. A negligent undertaking requires proof
      of the following:

             “1. The actor undertook, gratuitously or for consideration, to render
      services to another;

            “2. The services rendered were of a kind the actor should have
      recognized as necessary for the protection of third persons;

             “3. The actor failed to exercise reasonable care in the performance of
      the undertaking;

            “4. The actor’s failure to exercise reasonable care resulted in
      physical harm to the third persons; and

             “5. Either:

                    “a. The actor’s carelessness increased the risk of such harm,
             or

                     “b. The actor undertook to perform a duty that the other owed
             to the third persons, or

                    “c. The harm was suffered because either the other or the
             third persons reasonably relied on the actor’s undertaking.”
      In general, there is no duty to take affirmative action to assist or protect another.
(Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 335,
overruled on another point in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 328-329.)




                                            11.
As the jury was instructed here, Bard had no duty to train physicians on the use of its
Avaulta products.
       “However, one who undertakes to aid another is under a duty to exercise due care
in acting and is liable if the failure to do so increases the risk of harm or if the harm is
suffered because the other relied on the undertaking.” (Paz v. State of California (2000)
22 Cal.4th 550, 558-559 (Paz).) The Paz court set forth the elements of a negligent
undertaking claim. The instruction quoted above accurately reflects those requirements.
(Paz, supra, 22 Cal.4th at p. 559.)
       The Paz court noted that the negligent undertaking theory of liability subsumes the
well-known elements of a negligence action, i.e., duty, breach of duty, proximate cause
and damages. (Paz, supra, 22 Cal.4th at p. 559.) The foundational requirements for a
negligent undertaking claim are that the defendant undertook the tasks alleged to have
been performed negligently and the undertaking was to render services to another that the
defendant should recognize as necessary for the protection of third persons. (Id. at pp.
559-560.)
       Bard argues that its services were not of a kind Bard should have recognized as
necessary to protect persons and that these services did not increase the risk of harm to
Christine Scott. Therefore, Bard contends, the negligent undertaking theory should not
have been submitted to the jury.
       It is undisputed that Bard undertook to train physicians in the use of its Avaulta
products. Contrary to Bard’s position, this is not a situation where a non-doctor is
injected into the practice of medicine. Bard hired physicians who specialized in
urogynecology to conduct the training sessions. The majority of the training was
physician-to-physician interaction.
       Further, it is self evident that training physicians on the surgical technique for
implanting Bard’s Avaulta products is a type of service that is necessary to protect third


                                              12.
persons, i.e., the physician’s patients. Bard’s expert, Dr. Neeraj Kohli, testified that some
physicians may feel they need the training. Additionally, Bard presents the physicians
who attend the training with a certificate of completion that the physicians often give to
the hospital credentialing committee as evidence that they can competently conduct the
surgery. Finally, it should have been apparent to Bard that improper training could
increase the risk of harm to the physician’s patients. Accordingly, the theory that Bard
undertook to train physicians and thus had a duty to use due care in carrying out such
training was properly submitted to the jury.
              c. Negligent misrepresentation.
       The jury was instructed on negligent misrepresentation as follows:

              “The Scotts claim[] they were harmed because Bard negligently
       misrepresented an important fact to the Scotts Doctor. To establish this
       claim, [t]he Scotts must prove all of the following:

              “1. That Bard represented to [t]he Scotts Doctor that an important
       fact was true;

              “2. That Bard’s representation was not true;

              “3. That although Bard may have honestly believed that the
       representation was true, Bard had no reasonable grounds for believing the
       representation was true when it made it;

              “4. That Bard intended that [t]he Scotts Doctor rely on this
       representation;

              “5. That [t]he Scotts Doctor reasonably relied on Bard’s
       representation;

              “6. That [t]he Scotts were harmed; and

              “7. That [t]he Scotts Doctor’s reliance on Bard’s representation was
       a substantial factor in causing the Scotts harm.”
       Because the trial court directed a verdict in Bard’s favor on the Scotts’ fraud
claim, Bard contends the negligent misrepresentation theory should not have been


                                               13.
submitted to the jury. The fraud cause of action was based on the allegation that at some
of the training sessions, one of the slides shown to the physicians during the power point
presentation stated that Avaulta was FDA approved whereas it was in fact FDA cleared.
In making its ruling, the trial court noted there was no evidence that this slide was
presented to Dr. Kannappan. Further, Dr. Kannappan testified that she did not know
what the slide said but thought the product was 100 percent safe. Thus, the court found
there was no proof that Bard made that alleged misrepresentation of fact to Dr.
Kannappan.
       However, the Scotts relied on additional evidence to support their negligent
misrepresentation theory. Dr. Kannappan testified that the training physician used by
Bard, Dr. Tate, represented that the Avaulta products had few complications, if any, and
that these potential complications were minor and could be treated on an outpatient basis
in the doctor’s office. According to Dr. Kannappan, Dr. Tate further stated that Avaulta
was recommended for use in young women. Such statements could support a finding of
negligent misrepresentation so long as the jury also found the other elements of the cause
of action to exist.
       Thus, the directed verdict on the fraud cause of action did not preclude a
negligence finding based on negligent misrepresentation. Therefore, the trial court did
not err in submitting this theory to the jury. Whether substantial evidence supports this
theory is a separate issue.
       B. Substantial evidence supports the negligence verdict.
       Here, the jury was presented with three negligence theories and returned a verdict
without specifying which theory it relied on. Accordingly, the verdict will be sustained if
any one theory is supported by substantial evidence and is unaffected by error.
(Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.) This “rule is based on the




                                             14.
assumption ‘that the jury found on the cause of action or theory which was supported by
substantial evidence and as to which there was no error.’” (Ibid.)
       Relying on Lundy v. Ford Motor Co. (2001) 87 Cal.App.4th 472, Bard contends
that reversal is required. According to Bard, all three of the negligence theories were
erroneously submitted to the jury and, if any one was erroneously submitted, the
negligence verdict must be reversed. The rationale for this rule is that, while jurors are
well equipped to analyze and weigh the facts, jurors cannot be expected to determine
whether a particular theory submitted to them is contrary to law. Thus, there is no way to
eliminate the likelihood that the jury chose the legally improper theory. (Id. at p. 480.)
       However, as discussed above, all of the negligence theories were legally valid.
Therefore, so long as at least one of these theories is supported by substantial evidence,
the verdict will be upheld.
       In reviewing the sufficiency of the evidence, the power of this court begins and
ends with a determination as to whether, on the entire record, there is any substantial
evidence, contradicted or uncontradicted, to support the jury’s findings. (Crawford v.
Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) The evidence must be viewed in the
light most favorable to the Scotts, giving them the benefit of every reasonable inference
and resolving all conflicts in their favor. (Jessup Farms v. Baldwin (1983) 33 Cal.3d
639, 660.) We may not substitute our view of the correct findings for those of the jury.
Instead, we must accept any reasonable interpretation of the evidence that supports the
jury’s decision. Nevertheless, we may not defer to that decision entirely. Substantial
evidence is not synonymous with any evidence. To be considered substantial, the
evidence must be reasonable in nature, credible, and of solid value. (McRae v.
Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.)




                                             15.
              a. Negligent design.
       Bard contends that the Scotts did not prove Bard negligently designed Avaulta
Plus because they did not present evidence comparing Bard’s conduct to other
manufacturers in the industry. As the jury was instructed, to be negligent, a product
designer must fail to use the amount of care in designing the product that a reasonably
careful designer would use in similar circumstances.
       As pointed out by Bard, the use of a vaginal mesh kit for the appropriate patient
was the standard of care in 2007. However, there were design differences between the
various manufacturers’ products.
       The Scotts’ expert, Dr. Donald Ostergard, testified as to the differences between
Avaulta Plus and other transvaginal mesh kits. Dr. Ostergard explained that Avaulta Plus
has very stiff mesh arms. The design calls for the arms to be trimmed to fit the patient
and when the mesh is cut, very sharp corners are left. Dr. Ostergard testified that Avaulta
Plus is the only product with distal arms on a posterior implantation. Further, no other
mesh product is designed to be placed as close to the anal sphincter as Avaulta Plus is.
Erosion of these closely placed arms into Christine Scott’s anal sphincter caused her to
lose control of this muscle. Dr. Ostergard further testified that Avaulta Plus is the only
product where the arms are pulled back outside the body through the buttocks. These
arms are contaminated with bacteria from the vagina. Accordingly, the arms contaminate
the tissue through which they are pulled and increase the chance of infection. Infection
leads to mesh erosion. Christine Scott suffered such an infection.
       Bard argues that Dr. Ostergard could not competently testify as to the standard of
care for a transvaginal mesh kit manufacturer because he was critical of every
manufacturer’s transvaginal mesh product and had never used Avaulta Plus. Bard further
contends that Dr. Ostergard’s opinions were not substantial evidence of negligence




                                            16.
because he did not explain what a reasonable device manufacturer would have done
differently.
       Although Dr. Ostergard was critical of all transvaginal mesh kits and had never
implanted Avaulta Plus, he was familiar with the design of various transvaginal mesh kits
and was an expert in the field of urogynocology. Dr. Ostergard testified as to the
differences between Avaulta Plus and other manufacturer’s products and explained why
the Avaulta Plus design was more likely to injure the patient. From this evidence, the
jury could decide whether Bard acted as a reasonably careful medical device
manufacturer when it designed Avaulta Plus.
       Accordingly, the negligent design claim is supported by substantial evidence.
Since only one theory is necessary to sustain the negligence verdict, we need not
determine whether the negligent training and negligent misrepresentation claims are
supported by the record.
       C. Bard was not denied a fair trial.
               a. Postsurgery evidence of FDA actions.
       When the trial court heard the in limine motions two months before trial, it barred
evidence of postsurgery regulatory actions, including the FDA’s 2008 and 2011 public
health notices and 2012 letter requesting clinical trials. During trial, the court reversed its
pretrial ruling and allowed the Scotts to present evidence of the FDA’s public health
notices and 2012 letter. Bard moved for a mistrial, which the trial court denied.
Alternatively, Bard requested a six-week continuance so it could recall certain witnesses.
The trial court denied this motion as well.
       Bard contends the trial court erred in admitting the FDA’s postsurgery regulatory
actions. According to Bard, this evidence is irrelevant because a medical product
manufacturer has a duty only with regard to information that was known or scientifically
knowable at the time the product was used. Additionally, Bard asserts that this evidence


                                              17.
is prohibited by Evidence Code section 1151. Bard further argues that the evidence
should have been excluded under Evidence Code section 352 because its probative value
was substantially outweighed by the risk of unfair prejudice, misleading the jury, and
wasting time.
       We review the trial court’s rulings on the admissibility of evidence for an abuse of
discretion. A court’s discretion is abused where there is a clear showing that the ruling
exceeded the bounds of reason, all of the circumstances being considered. Moreover, if
the trial court errs, reversal of the judgment is not required unless the error resulted in a
miscarriage of justice. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332 (Saxena).)
                i. Relevance.
       Bard argues the FDA’s postsurgery regulatory actions are irrelevant to the claim
against it because, as a medical device manufacturer, Bard only had a duty with regard to
information that was known or scientifically knowable at the time the product was used.
As noted above, the 2008 and 2011 public health notices were sent to physicians and
discussed the risks that were already stated in the Avaulta Plus instructions for use.
These notices recommended that physicians obtain specialized training for each mesh
placement technique and that they be vigilant for potential adverse events. The 2012
letter was sent to approximately 30 manufacturers, including Bard, and requested the
manufacturers to conduct postmarket clinical studies or collect clinical data for
transvaginal mesh.
       Bard is correct that, initially, this evidence was marginally relevant at best. Any
liability of Bard for negligence or failure to warn was tied to its conduct and knowledge
before the surgery. However, during its opening statement, Bard caused this evidence to
become relevant when it intimated that the FDA had continued to monitor and regulate
transvaginal mesh and had taken no action. While the in limine ruling excluding the




                                              18.
FDA regulatory actions was in place, Bard explained to the jury that Avaulta Plus was
cleared and then stated:

              “Now, once the FDA does that and says you may sell, is that the end
       of it? The answer is a very definitive no. And that is that the FDA is
       monitoring and regulating these products throughout and they always do
       that. And so one of the things that is required by regulation [is] complaint
       handling so if anyone has a complaint or has an outcome if the company
       finds out it has to be reported to the FDA and there are certain rules and
       regulations about that, the complaints and the trending and tracking of those
       complaints would go to the departmental heads, the management review to
       keep an eye on to see is there anything out of the usual here or is this the
       incident rate about what we see for other product.”
       Thus, the regulatory evidence became relevant to disabuse the jury of the notion
introduced by Bard that the FDA was closely monitoring transvaginal mesh kits and had
found no cause for concern about their safety.
       Moreover, Bard was advised early on by the court on how its opening statement
had changed the situation. Shortly after Bard gave its opening statement, the trial court
expressed its concern that Bard had “made it clear that BARD is going to say we had
FDA approval and then attempt to exclude the fact that in 2011[sic] the FDA pulled the
plug on BARD and others.” The court then advised Bard that it was giving it “fair
warning” that the court thought that it was “unfairly limiting” the Scotts and that Bard
could not “have it both ways.”
              ii. Evidence Code section 1151.
       Bard further argues that the postsurgery FDA regulatory actions were inadmissible
under Evidence Code section 1151. That section provides:

              “When, after the occurrence of an event, remedial or precautionary
       measures are taken, which, if taken previously, would have tended to make
       the event less likely to occur, evidence of such subsequent measures is
       inadmissible to prove negligence or culpable conduct in connection with
       the event.”



                                            19.
       This rule excluding evidence of subsequent remedial or precautionary measures
originally rested on the notion that such measures were completely irrelevant to the issue
of the defendant’s negligence at the time of the accident. (Ault v. International Harvester
Co. (1974) 13 Cal.3d 113, 119 (Ault).) Despite courts recognizing several exceptions to
this rule over the ensuing years, it has been retained in negligence cases as a matter of
“public policy.” Evidence Code section “1151 rests explicitly on this ‘public policy’
rationale.” (Ault, supra, at p. 119.) The draftsmen’s comment to this section explains its
purpose as follows: “‘The admission of evidence of subsequent repairs to prove
negligence would substantially discourage persons from making repairs after the
occurrence of an accident.’ (Italics added.) [Citation.]” (Ibid.)
       Accordingly, the court in Ault concluded that Evidence Code section 1151 was not
intended to apply to cases founded on strict liability in a products liability action. (Ault,
supra, 13 Cal.3d at p. 118.) When the context is transformed from a typical negligence
setting to modern products liability, the public policy assumptions justifying this
evidentiary rule are no longer valid. (Id. at p. 120.)
       Thus, Evidence Code section 1151 would not have required the exclusion of the
FDA regulatory actions if this case were based only on strict liability. However, the
Scotts also claimed Bard was negligent.
       Nevertheless, there is another factor that distinguishes these subsequent remedial
actions from the typical negligence case. Here, the postsurgery actions were taken by a
third party, the FDA. Since imposition of liability is not sought against the person taking
the remedial action, the policy consideration of not wanting to discourage persons from
taking remedial action that might prevent further injury is absent. Therefore, the FDA
regulatory actions were not inadmissible under Evidence Code section 1151. (Cf.
Magnante v. Pettibone-Wood Manufacturing Co. (1986) 183 Cal.App.3d 764, 768.)




                                             20.
       However, testimony that Bard took Avaulta Plus off the market in response to the
FDA’s 2012 letter was also admitted. Nevertheless, even if improper, any error in
admitting that evidence was harmless. Bard repeatedly and emphatically explained that
Avaulta Plus was taken off the market only because it had become obsolete.
              iii. Evidence Code section 352.
       Evidence Code section 352 provides that the court may, in its discretion, exclude
evidence if its probative value is substantially outweighed by the probability that it will
create a substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.
       Bard contends this section required exclusion of the FDA postsurgery regulatory
actions. According to Bard, the prejudice was acute because the FDA acts for reasons
that are foreign to jurors. Bard further notes the FDA never found Avaulta Plus to be
defective in any respect and required all transvaginal mesh manufacturers to conduct a
postmarket study.
       The prejudice that exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice that naturally flows from relevant evidence. The
prejudice referred to in this section applies to evidence that uniquely tends to evoke an
emotional bias against the defendant and that has very little effect on the issues. (Donlen
v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 150 (Donlen).) Further, the prejudice
must substantially outweigh the probative value. (Ibid.)
       In deciding whether the probability of substantial danger of prejudice substantially
outweighs probative value, trial courts enjoy broad discretion. Accordingly, “‘[a] trial
court’s exercise of discretion “will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” [Citation.]’ [Citation.]” (Donlen, supra, 217
Cal.App.4th at p. 150.)


                                             21.
       Here, the trial court’s admission of the FDA regulatory actions was not so
arbitrary, capricious or patently absurd that it resulted in a manifest miscarriage of
justice. Although before trial the jurors might not have understood the different FDA
actions, during trial various witnesses explained what the FDA’s actions meant. Further,
the jury was made aware that the FDA did not find Avaulta Plus to be defective and that
the 2012 letter was sent to all transvaginal mesh manufacturers. Thus, the jury was able
to evaluate the FDA regulatory actions in context.
       b. The mid-trial reversal of the in limine ruling and continuance denial.
       Bard contends that, regardless of whether the FDA regulatory action evidence
was admissible, the trial court abused its discretion when it changed its in limine ruling
and admitted that evidence mid-trial. According to Bard, it was prejudiced because (1) it
lost the opportunity to examine prospective jurors on the bias they may have due to
misinterpreting the FDA’s actions or Bard’s decision to stop selling the product; (2) it
lost credibility before the jury because it had not addressed the subject; and (3) it was
forced to read deposition testimony from witnesses who had already testified and thereby
highlighted the subject.
       Bard further argues the trial court abused its discretion in denying its motion for a
continuance. Bard asserts that after the court changed its ruling, it needed time to
regroup because it had released witnesses and had not gathered necessary documentary
evidence.
       Again, we apply the abuse of discretion standard to the trial court’s action.
Accordingly, we will not disturb the rulings in the absence of a clear showing that the
trial court exceeded the bounds of reason, all of the circumstances being considered, i.e.,
the court’s rulings were arbitrary, capricious, or patently absurd. (Saxena, supra, 159
Cal.App.4th at p. 332; Donlen, supra, 217 Cal.App.4th at p. 150.)




                                             22.
       In limine rulings are tentative and the court retains discretion to make different
rulings as the evidence unfolds. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1174.) As
discussed above, Bard’s opening statement caused the FDA regulatory action evidence to
become relevant and the court warned Bard shortly thereafter that Bard’s remarks had
changed the situation. Moreover, the parties had fully explored this evidence during
discovery. It was not a situation where the plaintiff was attempting to bring in new facts
or theories of liability during the trial. Under these circumstances, the court’s mid-trial
ruling on the admissibility of the FDA regulatory action evidence was not arbitrary,
capricious or patently absurd.
       Bard also has not demonstrated that the court’s rulings resulted in a miscarriage of
justice. The court had made it clear to both parties when it made the in limine rulings
that they were subject to change and Bard was aware of this when it questioned the
potential jurors.
       As far as the order of evidence and the reading of deposition testimony, the court
instructed the jury:

              “Now, the Court decides what evidence is admissible and what
       evidence is not admissible during trial. Sometimes evidence is not
       admissible at the beginning of trial but will become admissible during trial.
       You must not guess or speculate as to why any evidence was not introduced
       … earlier in the case or was not discussed by counsel during opening
       statements. The decision as to whether evidence is admissible rests solely
       with the Court, not the parties. You may not give any evidence more or
       less weight based on [when] it was introduced during the trial.”
The jury was also instructed that “you must consider the deposition testimony that was
read to you in the same way as you consider testimony given in court.”
       “Absent some contrary indication in the record, we presume the jury follows its
instructions [citations] ‘and that its verdict reflects the legal limitations those instructions
imposed.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804



                                              23.
(Cassim).) In light of this presumption, we must conclude that the above instructions
cured any potential prejudice due to the order of the evidence and the supplemental
deposition testimony.
       Similarly, the trial court’s denial of Bard’s motion to continue the trial for six
weeks was not arbitrary or capricious. Because the trial was well underway, a lengthy
continuance would have been unreasonably disruptive. Further, Bard was able to use
deposition testimony for the witnesses who had become unavailable for recall.
       c. The alleged attorney misconduct.*
       Bard argues the Scotts’ counsel committed prejudicial misconduct when he
“blurted out excluded topics before the jury and lambasted the court.” Bard further
contends that parts of counsel’s closing argument were improper.
       Before the trial court reversed its ruling on the admissibility of the FDA’s
postsurgery actions, the Scotts’ attorney asked Dr. Jimmy Ross, one of Bard’s experts,
“Are you now aware that Johnson & Johnson is withdrawing from the market 100 percent
worldwide on all these vaginal mesh kits?” Bard’s counsel immediately objected and the
matter was taken up outside the presence of the jury.
       When the jury returned, the court stated: “Ladies and gentlemen, let me remind
you that what the lawyers say is not evidence. And only what the witnesses say is the
evidence that you’ll rely on in this case.” Thus, the jury was immediately instructed to
disregard the Scotts’ attorney’s comment. We must presume the jury followed and
applied this instruction. (Cassim, supra, 33 Cal.4th at pp. 803-804.) Thus, these remarks
were not prejudicial.
       Bard also points to the jury hearing comments about other cases against Bard as
being prejudicial. While reading a deposition transcript to the jury, the Scotts’ attorney

*      See footnote, ante, page 1.



                                             24.
inadvertently read a section that should have been excluded. This included the comment
“I think we are told we have at least a few hundred lawsuits.” Later, while being cross-
examined by Bard’s counsel about the Scotts’ pending action against her, Dr. Kannappan
stated “And there are 100 other cases in New York also from what I heard from my
counsel.” The court immediately admonished the jury as follows:

               “Ladies and gentlemen, whether there is one lawsuit or a million --
       and I can assure you there is not a million -- is of no consequence in this
       case. And you’ll disregard any comment from anyone in the courtroom
       about any lawsuit other than the Scott versus BARD lawsuit, which brings
       us all together. It is not evidence. I declare it as such, and you’ll disregard
       Dr. Kannappan’s comment.”
Again, we must presume the jury followed and applied this instruction and disregarded
the comments regarding other lawsuits against Bard. Thus, the improper comments did
not result in a miscarriage of justice.
       Bard further objects to the Scotts’ attorney’s closing argument where the attorney
emphasized the postsurgery FDA action. Counsel stated Bard took the product off the
market in response to the FDA’s 2012 letter and discussed how the product was not FDA
approved as Bard and its salespeople had claimed.
       However, as discussed above, the trial court did not abuse its discretion when it
ruled the evidence regarding the FDA’s actions was admissible. Further, in conducting
closing argument, the attorneys have wide latitude to discuss the case. Counsel may
vigorously argue the case and has the right to state fully his or her views as to what the
evidence shows and as to the conclusions to be fairly drawn. The adverse party cannot
complain if the reasoning is faulty and the deductions illogical, as such matters are
ultimately for the consideration of the jury. (Cassim, supra, 33 Cal.4th at p. 795.)
       In making the arguments objected to, the Scotts’ attorney was giving his view of
the conclusions the jury could draw from the evidence that was admitted. Bard did take
Avaulta off the market and at one point erroneously claimed Avaulta was FDA approved


                                             25.
when it was FDA cleared. The Scott’s attorney did not assume facts not in evidence or
invite the jury to speculate. The closing argument was not improper.
       During a discussion outside the presence of the jury, one of the attorneys
representing the Scotts, Eugene Lorenz, engaged in a heated discussion with the trial
court that Bard characterizes as haranguing and the court considered berating. Bard
argues that certain comments made by Mr. Lorenz during this discussion constituted
prejudicial misconduct.
       Our review of the trial record discloses that, in making the objected to statements,
Mr. Lorenz impugned the integrity of the court. Examples of his insolent comments
include:

       1.     “They deserve some better brand of justice than what is going on
       here.” (Referring to rulings made by the trial court.)

       2.      “It would be nice if you’d read some of our memos. It would be
       nice if you would sign the 3294 as promised. But you know the plaintiffs
       don’t get much time here.”

       3.     “BARD [defendant] owns the courthouse.”

       4.     “But let’s have a little bit of fairness to the plaintiffs, and the
       individual here. Just a little bit. Tiny bit of justice.”
       These statements were contemptuous of the trial judge. They are contemptuous on
their face because they impugn the trial judge’s integrity by suggesting he has failed to
perform his duty to guarantee a fair trial. (Hanson v. Superior Court (2001) 91
Cal.App.4th 75, 84-85.) There is no possible justification for the insulting tone and
disparaging content of these remarks, which clearly crossed the line that separates
advocacy from contempt. The trial court would have been well within its discretion in
citing Mr. Lorenz for direct contempt. Although the trial court admonished Mr. Lorenz
against interrupting him and at one point told him that his advocacy was approaching
contempt, he did not cite him for contempt.


                                              26.
       It is the duty of an attorney to “maintain the respect due to the courts of justice and
judicial officers.” (Bus. & Prof. Code, § 6068, subd. (b).) An attorney commits direct
contempt when he impugns the integrity of the court by statements made in open court.
Insolence to the judge in the form of insulting words or conduct in court has traditionally
been recognized in the common law as constituting grounds for contempt. (In re Buckley
(1973) 10 Cal.3d 237, 248.)
       The trial judge is an experienced and able one, which even Mr. Lorenz
acknowledged when he said to the court: “I think you do an excellent job of managing
your jury, your whole staff. And you do one of the best jobs. Your bailiff, your clerks, the
court reporter, I mean, the human part of it is done very, very well. And you are on the
ball with rulings. You are good…” Notwithstanding these compliments, he leveled
insulting remarks at the court which directly challenged the judge’s fair-mindedness.
       It is understandable why trial judges are reluctant to initiate contempt proceedings.
Contempt is a remedy of last resort and should be used with great prudence. (McCann v.
Municipal Court (1990) 221 Cal.App.3d 527, 536.) There are numerous appellate
decisions reversing contempt orders. (Id. at p. 537.) The Commission on Judicial
Performance has disciplined judges for abusing their contempt powers. Nevertheless, it
is a judge’s obligation to maintain the respect due to the court. (In re Ciraolo (1969) 70
Cal.2d 389, 394-395.) It is also an attorney’s duty to maintain that same respect. (Bus. &
Prof. Code, § 6068, subd. (b).)
       Mr. Lorenz violated his duty to maintain the respect due to the courts of justice
and judicial officers. However, he made these intemperate remarks to the court outside
the jury’s presence. Thus, the remarks were not prejudicial. Even so, if Mr. Lorenz
reflects back on what he said to the trial judge, he should feel a sense of shame and regret
and consider himself fortunate that the trial judge refrained from summarily finding him
in contempt.


                                             27.
       d. The alleged juror misconduct.*
       Bard argues that various instances of juror misconduct prejudicially tainted the
trial and thus the trial court erred in denying Bard’s motion for a new trial.
       Trial by jury is an inviolate right that is secured to all and includes the right to 12
unbiased and unprejudiced jurors. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th
499, 506.) Jury misconduct, unless shown by the prevailing party to have been harmless,
will invalidate the verdict. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944,
954 (Andrews), disapproved on another point in People v. Nesler (1997) 16 Cal.4th 561,
582, fn. 5).)
       “It is the trial court’s function to resolve conflicts in the evidence, to assess the
credibility of the declarants, and to evaluate the prejudicial effect of the alleged
misconduct.” (Andrews, supra, 130 Cal.App.3d at p. 954.) Accordingly, the appellate
court will accept the trial court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence. (Donovan v. Poway Unified School
Dist. (2008) 167 Cal.App.4th 567, 624 (Donovan).)
       A trial court has wide discretion in making such a ruling. Therefore, the appellate
court will accord great deference to the trial court’s evaluation of the prejudicial effect of
jury misconduct. However, where, as here, the appellate court is reviewing an order
denying a motion for new trial based on jury misconduct, the appellate court must review
the entire record, including the evidence, and determine independently whether the act of
misconduct, if it occurred, prevented the moving party from having a fair trial. (Andrews,
supra, 130 Cal.App.3d at pp. 954-955.) Bard, as the moving party, bears the burden of
establishing juror misconduct. (Donovan, supra, 167 Cal.App.4th at p. 625.)



*      See footnote, ante, page 1.



                                              28.
         Bard’s juror misconduct allegation focuses primarily on Juror 14. Bard first points
out that Juror 14 improperly posted on Twitter during trial showing his disdain for the
case. For example, this juror posted “FUCK THE COURT SYSTEM” and “Idgaf about
this mutha fuckin case! I’ll tell it on twitter. The case is a waste of my damn time.”
Shortly before the verdict was announced, Juror 14 posted “Damn, these niggas Finna get
paid up the ass.”
         Bard was monitoring jurors’ Twitter accounts during the trial and became aware of
the above tweets before the verdict. However, Bard did not bring these posts to the trial
court’s attention. As to the last post, Bard states it was aware of the post before the
verdict was read but did not report this post to the court because it did not know what it
meant.
         In seeking a new trial on the ground of juror improprieties, the litigant and its
attorney must show that neither was aware of the misbehavior until after the verdict was
returned. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103.) “The rule
is well settled that when at any time during trial a party or his counsel becomes aware of
facts constituting misconduct or irregularity in the proceedings of the jury, he must
promptly bring such matters to the attention of the court, if he desires to object to it, or he
will be deemed to have waived the point as a ground for a motion for a new trial.” (Ibid.)
This prevents a party from gambling on the outcome of the jury’s deliberations while
secretly preserving the error to be raised on a motion for a new trial in the event of an
unfavorable verdict. (Ibid.)
         Here, by not bringing these Twitter posts to the trial court’s attention, Bard
forfeited this point as a ground for its new trial motion. In fact, Bard conceded this fact
during the hearing on its new trial motion stating that it was alleging misconduct on the
part of Juror 14 “based solely on what was done during deliberations.” Further, as noted
by the trial court, there was an alternate juror available.


                                               29.
       Based on a declaration executed by Juror 7, Bard alleges that it is entitled to a new
trial because Juror 14 did not properly deliberate. According to Juror 7, during the entire
deliberation process Juror 14 did not actively participate. Juror 7 stated that Juror 14 was
either asleep or busy typing on his cell phone and, when it was time to vote on a specific
question, Juror 7 had to wake Juror 14 up whereupon Juror 14 would ask about the
current vote and then vote with the majority.
       However, the jury foreman, Juror 13, executed a contradictory declaration. Juror
13 stated that he had read the declaration executed by Juror 7 and that what Juror 7
describes “is not what I observed in the jury room. I took my heavy responsibilities as
jury foreman very seriously and ensured that all jurors took part in the deliberations,
including … Juror 14.” According to Juror 13, his declaration “accurately reflects my
work as foreman and the jury’s deliberations.”
        A refusal to deliberate constitutes juror misconduct. The parties are entitled to the
participation of all 12 jurors. (Andrews, supra, 130 Cal.App.4th at p. 959.) Further, here,
the vote was nine to three in favor of finding Bard negligent and Juror 14 voted with the
majority. Nevertheless, the evidence presented a factual conflict. It was up to the trial
court to assess the credibility of the declarants and to resolve this conflict. (Id. at p. 954.)
       Bard notes that during the hearing the trial court observed that “we basically have
dueling affidavits between the foreman who says I was doing my job and [Juror 7], I
guess, who says [Juror 14] wasn’t participating. [¶] I’m not sure that I can make -- you
are asking me, I think, to make a factual determination based on these two affidavits.
And I’m not sure that is not an inappropriate exercise on the part of the trial court. [¶]
So go ahead.” According to Bard, this discourse demonstrates the trial court did not
exercise its discretion in ruling on the new trial motion. Rather, the trial court “punted.”
       However, this was not the end of the hearing. After the court stated the above,
Bard’s counsel urged the court to find both affidavits were admissible. Counsel then


                                              30.
argued that the affidavits were not contradictory in that Juror 13 only stated that he did
not observe what Juror 7 observed.
       At the conclusion of the hearing, the court ruled “I believe that the evidence -- that
the competition between [Juror 13’s] and [Juror 7’s] declarations, both are admissible,
support that there was deliberation.” Accordingly, the trial court assessed credibility and
resolved the factual conflict. Having observed the jurors during the trial, the court was in
a position to make this determination. Further, based on Juror 13’s declaration,
substantial evidence supports this finding.
       Bard additionally argues that “passive” juror misconduct occurred and tainted the
trial. During the trial one juror informed the court that he had seen a television ad stating
that the transvaginal mesh had been recalled. When questioned by the trial court, this
juror at first was unsure that he could be fair. However, the juror agreed that he could
follow the law and would not consider this ad as evidence. We must presume that this
juror so followed and applied the court’s instructions. (Cassim, supra, 33 Cal.4th at pp.
803-804.)
       According to Bard, another instance of “passive” misconduct occurred when Juror
7 received unsolicited emails advertising mesh litigation. However, as Juror 7 stated in
his declaration, he followed the trial court’s instructions and did not open these emails.
Moreover, as noted by the trial court, Bard was not prejudiced by Juror 7’s receipt of
these emails because Juror 7 voted in favor of Bard on the negligence claim.
       In sum, the record supports the trial court’s determination that Bard was not
denied a fair trial.
2.     The Scotts’ appeal.
       The jury found that Bard was negligent and that its negligence was a substantial
factor in causing harm to Christine Scott. The jury also found that Dr. Kannappan was
negligent. However, the jury found that Dr. Kannappan’s negligence was not a


                                              31.
substantial factor in causing Christine Scott’s harm. Nevertheless, the jury determined
that Dr. Kannappan was 40 percent at fault leaving Bard 60 percent at fault. Based on the
jury’s comparative fault finding, the trial court reduced the Scotts’ $5.5 million award to
$3,610,000.
       The Scotts argue that it was necessary to instruct the jury on medical professional
negligence to support the apportionment and, because the jury was not so instructed, the
trial court erred in reducing the damages.
       In a personal injury action based upon comparative fault, each defendant is liable
only for the amount of noneconomic damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault. (Civ. Code, § 1431.2.) However, it is
not necessary that all persons at fault be parties to the action. Rather, a defendant may
attempt to reduce its share of liability for noneconomic damages by seeking to add
nonparty joint tortfeasors. Nevertheless, there must be substantial evidence that a
nonparty is at fault before damages can be apportioned to that nonparty. (Wilson v. Ritto
(2003) 105 Cal.App.4th 361, 367 (Wilson).)
       Apportionment of noneconomic damages is a form of equitable indemnity in
which a defendant may reduce its obligation to pay damages by establishing others are
also at fault for the plaintiff’s injuries. Accordingly, the burden is on the defendant to
prove fault as to those nonparty tortfeasors. (Wilson, supra, 105 Cal.App.4th at p. 369.)
       Fault in the context of medical treatment is measured by the standard of care in the
medical community. (Wilson, supra, 105 Cal.App.4th at p. 369.) Therefore, Bard was
required to prove, with expert testimony, that Dr. Kannappan, a nonparty, breached the
medical standard of care. (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th
1557, 1570.) The record supports such a finding.
       Plaintiff’s expert, Dr. Ostergard, testified that it was his “opinion that the surgical
technique used during Christine Scott’s January 9, 2008 surgery, the one day Avaulta


                                             32.
training seminar and patient post surgery care are below the requisite standard of care
expected of a physician practicing obstetrics and gynecology in Bakersfield, California.”
Dr. Kohli, one of Bard’s experts, testified that he was asked by Bard to “review records
and render an opinion as to the standard of care regarding this case.” Dr. Kohli then
opined that Dr. Kannappan fell below the standard of care when she implanted more
products than Christine Scott needed.
       The Scotts’ objection to the jury’s finding that Dr. Kannappan was 40 percent at
fault is based on the instructions given. The jury was instructed:

              “C. R. Bard claims that the negligence of Dr. Kannappan and Dr.
       Klis contributed to Christine Scott’s harm. To succeed on this claim, C. R.
       Bard must prove both of the following:

              “1. That Dr. Kannappan and/or Dr. Klis were negligent; and

              “2. That this negligence was a substantial factor in causing Christine
       Scott’s harm.

              “If you find the negligence of more than one person, including C. R.
       Bard, Dr. Kannappan and Dr. Klis, was a substantial factor in causing
       Christine Scott’s harm, you must then decide how much responsibility each
       has by assigning percentages of responsibility to each person listed on the
       verdict form. The percentages must total 100 percent.”
The jury was also instructed on the basic standard of care as set forth in section 1.A.a. of
this opinion. However, despite the jury being asked to determine whether a medical
professional was negligent, the jury was not instructed on the medical standard of care.
       “The standard of care in a medical malpractice case requires that medical service
providers exercise that reasonable degree of skill, knowledge and care ordinarily
possessed and exercised by members of their profession under similar circumstances.”
(Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) This standard of care is a
matter peculiarly within the knowledge of experts and therefore expert testimony is




                                             33.
required to “prove or disprove that the defendant performed in accordance with the
prevailing standard of care.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)
       Thus, the medical standard of care is more specific than the general standard of
care and, unlike general negligence, requires expert testimony. Accordingly, it is more
difficult to prove a defendant fell below the medical standard of care than it is to prove a
defendant fell below the general standard of care.
       The Scotts argue that, because Bard had the burden to prove Dr. Kannappan was
negligent, Bard cannot benefit when the jury was not instructed on the medical standard
of care. Therefore, the Scotts contend, the jury’s 40 percent fault finding cannot stand
and the trial court’s reduction in the award must be reversed.
       However, it was in the Scotts’ best interest for the jury to find that Dr. Kannappan
was not at fault. Thus, it was also in the Scotts’ best interest for the jury to be instructed
on and apply the more specific standard of care. Nevertheless, the Scotts acquiesced in
the giving of incomplete instructions on Dr. Kannappan’s fault. This put the Scotts in a
“win win” position. By acquiescing to the absence of an instruction on the medical
standard of care, the Scotts could wait and see what the jury did and then, if the jury
found Dr. Kannappan was partially at fault, argue that the finding could not stand because
the jury was not instructed on the medical standard of care. We conclude that, under
these circumstances, the Scotts are estopped from asserting this instructional error on
appeal. (Cf. Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000.)
       The Scotts further argue there can be no apportionment of fault because there was
no causation finding. The jury answered “no” to the question “Was Dr. Tillaikarasi
Kannappan’s negligence a substantial factor in causing Christine Scott’s harm?” but
apportioned 40 percent fault to Dr. Kannappan. There is an inconsistency between these
two answers. The jury needed to find that Dr. Kannappan’s negligence was a substantial
factor before it could apportion fault to Dr. Kannappan.


                                              34.
       This inconsistency rendered the special verdict “‘hopelessly ambiguous.’”
(Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092 (Zagami).)
Nevertheless, based on the absence of a causation finding, the Scotts argue this court
should reverse the apportionment finding. In other words, the Scotts urge this court to
ignore the 40 percent fault finding and modify the judgment to reflect no apportionment
of fault to Dr. Kannappan. However, “‘[t]he appellate court is not permitted to choose
between inconsistent answers.’” (Zagami, supra, 160 Cal.App.4th at p. 1092.) We
cannot infer findings in favor of the Scotts. (Orthopedic Systems, Inc. v. Schlein (2011)
202 Cal.App.4th 529, 542.) Therefore, this argument fails.
                                     DISPOSITION
       The judgment is affirmed. The parties are to bear their own costs on appeal.


                                                                _____________________
                                                                      LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
DETJEN, J.




                                            35.
