Trial Court: Santa Clara County Superior Court Superior Court No. 104-CV-023354 Trial Judge: Hon. Richard J. Loftus, Jr. Super. Ct. No. CV023354)
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
Plaintiff Andrew Garcia, a minor by his guardian ad litem, Paul Garcia, sued Dr. Douglas Phan for medical malpractice and defendant ConMed Corporation for products liability after suffering injuries during a tonsillectomy in which Dr. Phan used an electrocautery device powered by a generator manufactured by defendant. After defendant's argument to the jury, plaintiff moved for a mistrial grounded on misconduct of counsel during argument. The trial court found that defendant's counsel, Genese Dopson, had engaged in misconduct, denied plaintiff's motion, and admonished the jury to ignore Dopson's improper statements. The jury returned a verdict in favor of plaintiff against Dr. Phan for approximately $750,000. It also returned a verdict in favor of defendant against plaintiff. As to defendant, plaintiff moved for a new trial grounded on misconduct of counsel during argument. The trial court found that the misconduct was not prejudicial and denied the motion. On appeal from the judgment, plaintiff contends that defense counsel's misconduct requires reversal of the judgment. We hold that the misconduct, though egregious, was not prejudicial in the circumstances of this case. We therefore affirm the judgment.
"When presentation of the evidence is concluded in a civil trial, 'unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument.' [Citation.] In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. ' " ' "The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury." ' " [Citations.] "Counsel may vigorously argue his case and is not limited to 'Chesterfieldian politeness.' " [Citations.] "An attorney is permitted to argue all reasonable inferences from the evidence, . . ." [Citation.] "Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety." [Citation.]' [Citation.] The same rules apply in a criminal case. [Citation.] [¶] An attorney who exceeds this wide latitude commits misconduct. For example, '[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client's case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.' [Citation.] Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel's motives or character. [Citation.] Additional examples abound; these are but a few." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796 (Cassim).)*fn1
Attorney misconduct is an irregularity in the proceedings and a ground for a new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870 (Decker).) Although it is common practice to urge that attorney misconduct is an error of law justifying the grant of a motion for a new trial, a party is not required to move for a new trial before raising attorney misconduct as an issue on appeal. (See Estate of Barber (1957) 49 Cal.2d 112, 119 [generally, motion for a new trial not necessary to preserve an issue for appeal].) However, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial and the party must also have moved for a mistrial or sought a curative admonition unless the misconduct was so persistent that an admonition would have been inadequate to cure the resulting prejudice. (Cassim, supra, 33 Cal.4th at pp. 794-795.) This is so because "[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial." (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320 (Sabella).)
But it is not enough for a party to show attorney misconduct. In order to justify a new trial, the party must demonstrate that the misconduct was prejudicial. (Cassim, supra, 33 Cal.4th at p. 800.) As to this issue, a reviewing court makes "an independent determination as to whether the error was prejudicial." (Decker, supra, 18 Cal.3d at p. 872.) It "must determine whether it is reasonably probable [that the appellant] would have achieved a more favorable result in the absence of that portion of [attorney conduct] now challenged." (Cassim, supra, at p. 802.) It must examine "the entire case, including the evidence adduced, the instructions delivered to the jury, and the entirety of [counsel's] argument," in determining whether misconduct occurred and whether it was sufficiently egregious to cause prejudice. (Ibid.) "Each case must ultimately rest upon a court's view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances." (Sabella, supra, 70 Cal.2d at pp. 320-321, fn. omitted.) "[I]t is only the record as a whole, and not specific phrases out of context, that can reveal the nature and effect of such tactics." (Id. at p. 318.)
Defendant argues that we should also conduct an independent review of the first question, whether attorney misconduct existed. It urges--contrary to the trial court's findings--that counsel's arguments did not amount to misconduct. The parties cite no authority on this aspect of the scope of our review.
Cassim does not shed light on the issue. There, the trial court had overruled objections grounded on attorney misconduct during argument. The Court of Appeal, however, held that two instances of misconduct had occurred and reversed the judgment. The Supreme Court--without commenting on the scope of review for misconduct findings--reversed the Court of Appeal judgment after finding that the first instance did not constitute misconduct and the second instance was harmless if misconduct were assumed.
We need not wade into these waters and decide whether review of a trial court's finding of attorney misconduct is independent or deferential. Even under independent review, a conclusion that Dopson's argument to the jury amounted to misconduct is unavoidable. We have reviewed defendant's arguments to the contrary. They are unconvincing and do not merit further discussion.
Defendant manufactures electrosurgery units (ESU), which are electrical generators that provide heat to electrocautery devices. Electrocautery devices are used in tonsillectomies and other types of operations. One such device is called a needlepoint Bovie, a pen-shaped instrument that is used to cut tissue and then stimulate coagulation. A button on the device triggers the cutting function, and another button triggers the coagulation function. Another such device is called a suction Bovie, which removes fluids secreted from tissue. A foot pedal triggers its function. When the functions are triggered, needlepoint from the buttons and suction from the foot pedal, both devices become hot.
Dr. Phan performed a tonsillectomy and adenoidectomy on plaintiff at San Jose Medical Center. Anesthesiologist Dr. Alice Tsao and surgical technician Ramon Beals assisted him. Before the surgery, Dr. Tsao inserted a breathing tube in plaintiff's throat to administer oxygen and anesthetic gas to plaintiff. During the surgery, Dr. Phan used a needlepoint Bovie powered by an ESU manufactured by defendant. While Dr. Phan was using the needlepoint Bovie, a fire occurred in the breathing tube and plaintiff inhaled smoke and suffered burns. Dr. Tsao turned off the oxygen flow, Dr. Phan poured saline solution into plaintiff's throat and sucked it out with a suction device, Dr. Tsao removed the breathing tube, and another anesthesiologist, Dr. Marc Ferrari, inserted another breathing tube and turned on the oxygen. The doctors washed soot from plaintiff's throat and transferred plaintiff to the pediatric intensive care unit. Still later, they transferred plaintiff to Lucile Packard Children's Hospital at Stanford University. Plaintiff suffered brain damage from oxygen deprivation and carbon monoxide poisoning.
Plaintiff sued Dr. Phan for negligence and defendant for (1) negligently designing the ESU, (2) failing to adequately warn about the dangers of using the ESU, and (3) failing to recall or retrofit the ESU. Plaintiff's underlying point against defendant was that the ESU was defective because it allowed simultaneous activation of a needlepoint Bovie and a suction Bovie. According to plaintiff, this increased the risk of fire.
At trial, plaintiff introduced the breathing tube and a burned suction Bovie. The diameter of the hole in the breathing tube was the same as the diameter of the burned suction Bovie. Plaintiff's fire accident reconstruction expert, Vyto Babrauskas, opined that the fire started because defendant's generator activated the suction Bovie and the suction Bovie contacted the breathing tube and created the burn. Plaintiff's product design expert, Joseph Dyro, opined that a single-use ESU was safer than a simultaneous-use ESU because a single-use ESU would prevent two electrodes from being on at the same time. He also reviewed defendant's internal documents which revealed that defendant had performed a hazard analysis for the European version of the ESU--which recommended, among other things, "to use two generators as a more ideal situation"--and that defendant's American manual for the ESU did not have any warnings associated with the hazards of simultaneous activation.
Defendant's evidence included tests of the ESU conducted before and after plaintiff's operation that showed the ESU passing every test and testimony to the effect that the ESU had FDA clearance and compliance with national and international safety standards. Other testimony indicated that simultaneous activation was not a defect but rather a beneficial feature for surgeries that require the use of two electrocautery devices simultaneously. In addition, Dr. Phan testified that he did not use a suction coagulator during the plaintiff's surgery but used what he uses in all of his tonsillectomies, a baby Yankauer, a device that does not get hot;*fn2 Beals and a nurse testified that they did not see a suction coagulator used in plaintiff's surgery and had never seen a surgeon use a needlepoint Bovie and a suction device in a patient's mouth at the same time; and Beals testified that the foot pedal to the ESU was not set up for plaintiff's surgery.*fn3 Defendant also disputed plaintiff's injuries. According to Dr. Tsao, the entire incident lasted seconds, plaintiff was oxygenated throughout the incident, and plaintiff's vital signs remained stable throughout the incident. ...