Kline v. Zimmer, Inc.

• Decision Date: 26 May 2022
• Docket Number: B302544
• Citation: 79 Cal.App.5th 123,294 Cal.Rptr.3d 500
• Parties: Gary KLINE, Plaintiff and Respondent, v. ZIMMER, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 123

294 Cal.Rptr.3d 500

Gary KLINE, Plaintiff and Respondent,

v.ZIMMER, INC., Defendant and Appellant.

B302544

Court of Appeal, Second District, Division 8, California.

Filed May 26, 2022

Faegre Drinker Biddle & Reath, Tarifa B. Laddon, Amanda Semaan, Los Angeles, Bruce Jones and Joseph M. Price for Defendant and Appellant.

Waters Kraus & Paul, Gary M. Paul and Michael B. Gurien, El Segundo, for Plaintiff and Respondent.

HARUTUNIAN, J.^*

This is an appeal of a judgment entered after a limited retrial of plaintiff and respondent Gary Kline's personal injury claims against defendant and appellant Zimmer, Inc. (Zimmer), a medical device manufacturer. Zimmer asserts that the trial court made two categories of evidentiary error and that the jury awarded Kline excessive damages. We agree with Zimmer that the court erred in categorically excluding all of Zimmer's proffered medical opinions expressed to less than a reasonable medical probability as to issues on which Kline bore the burden of proof. Because that error prevented Zimmer from presenting any expert testimony as to an issue where expert testimony was essential, we reverse for a retrial. As Zimmer's other points of error are not necessary to our disposition of this appeal, we decline to address them.

BACKGROUND

Due to painful osteoarthritis

in his right hip, Kline underwent a total hip replacement surgery in 2007, during which he was implanted with an artificial joint called the Durom Acetabular Component (Durom Cup). Zimmer was the manufacturer of the Durom Cup. The initial surgery failed and Kline underwent a second surgery—known as a "revision surgery"—in September 2008 to replace the Durom Cup with a different device. Kline continued to experience severe pain after his revision surgery. He underwent various treatments and physical therapy, and, by March of 2009, he was "back to normal" and "feeling pretty good." With this progress, Kline was released from the care of his physical therapist and his orthopedic surgeon.

However, the pain returned and Kline began seeing a rheumatologist, Dr. Chabra, in September of 2010. Kline continued to see Dr. Chabra for approximately eight years. Dr. Chabra noted at his initial visit that Kline was complaining of hip pain and stiffness in both hips, with stiffness primarily in his surgically repaired hip. Kline also complained of lower back pain. Dr. Chabra performed a series of tests and studies and did not reach a conclusion as to the cause of his pain. Dr. Chabra did prescribe Kline a steroid, together with other drugs, to see if it would alleviate his symptoms. The steroid did so but, in consultation with Dr. Chabra, Kline discontinued its use over concerns of negative side effects. Kline's condition then deteriorated significantly. Thereafter, he repeatedly went back on, and then back off, the steroid with corresponding improvements and set-backs in his pain levels. Dr. Chabra also prescribed Kline narcotic pain medication and physical therapy, but the pain and limitations on mobility persisted, particularly in the right hip area.

At some point Kline made the decision to sue Zimmer. The thrust of his claim was that the Durom cup was defective; were it not defective his first surgery likely would have substantially resolved his hip issues; because it was defective he suffered ongoing pain and impairments and required a second surgery; and the second surgery left him with permanent pain and impairments. In 2015, a jury found the Durom Cup was, in fact, defective and awarded Kline $153,317 in economic damages and $9 million in non-economic damages. But the first trial court granted a new trial based on its view of the damages being excessive and misconduct on the part of Kline's counsel. On an appeal and cross-appeal raising a multitude of issues, we affirmed that grant in part and "remanded to the trial court for a retrial on Kline's damages caused by the design defect of the Durom Cup." ( Kline v. Zimmer, Inc . (Apr. 27, 2018, B269317), 2018 WL 1980957 [nonpub. opn] ( Zimmer I ).).¹

The second trial proceeded in 2019 and Kline was still experiencing pain and weakness, with attendant limitations on his daily life and activities. The jury in the second trial heard testimony from, among others, Kline, Dr. Chabra, Kline's orthopedic surgeon, Kline's current treating physician, and an expert hired by Kline to testify to the cause of his pain and other limitations. Kline's expert testified to a reasonable medical probability that his pain and weakness were a result of a defect in the Durom Cup that caused pain, inflammation, and changes to his hip joint which necessitated a second surgery, and that the second surgery resulted in changes to Kline's muscles and soft tissues causing him chronic pain. Prior to the first surgery, he opined, Kline had a "good high percentage potential of treatment," but because that surgery was rendered unsuccessful by the defective Durom Cup, Kline no longer has "a good high percentage treatment available."

The jury did not hear from an expert for Zimmer. Although Zimmer offered an expert, Dr. Sah, who was prepared to testify about "possible" alternative causes of Kline's pain, the trial court excluded any and all medical opinions that were expressed to less than a reasonable medical probability. Because Dr. Sah was unable to offer an opinion to a reasonable medical probability , Zimmer had no expert testimony. The court also excluded certain testimony from Kline's treating physicians relating to potential alternative causes of his pain on the same basis.

The second trial resulted in a slightly smaller jury verdict against Zimmer: $80,460.19 in economic damages and $7.6 million in noneconomic damages. Zimmer moved for another retrial based on (1) the exclusion of testimony on the grounds it was offered to less than a reasonable medical probability, (2) the exclusion of certain photographs and a video showing Kline engaged in hunting and shooting activities; and (3) excessive damages. The trial court denied Zimmer's motion. Zimmer now appeals the judgment and denial of its motion for retrial on the same grounds for which it sought retrial. We reverse the judgment and remand for retrial because we agree with Zimmer on its first point of error.

DISCUSSION

Zimmer contends that the trial court erred by excluding expert medical opinions Zimmer proffered because such opinions were not stated to a reasonable medical probability. The court's basis for exclusion was purely legal: it interpreted California law as barring any expert opinion stated to less than a reasonable probability, rendering one identifying a mere "possible cause ... not a proper opinion ...."

Although we ordinarily review rulings excluding expert testimony for abuse of discretion, our review is de novo when such rulings are based on a conclusion of law. ( Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773, 149 Cal.Rptr.3d 614, 288 P.3d 1237 ( Sargon ).)

1. Purpose for Which the Opinions Were Offered

Under California law, causation "in a personal injury action ... must be proven within a reasonable medical probability based upon competent expert testimony." ( Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402, 209 Cal.Rptr. 456 ( Ortho Pharmaceutical ).) The reasonable medical probability standard mirrors the more-likely-than-not standard of proof in general negligence actions. ( Id. at p. 403, 209 Cal.Rptr. 456.) Kline and Zimmer agree that expert causation testimony expressed short of a reasonable medical probability is inadmissible when offered by the party with the burden of proof. Zimmer contends, however, that the same rule does not apply to a party without the burden of proof, specifically when a defendant's expert testimony is offered only to challenge the plaintiff's expert's causation opinions. This contention prompted a disagreement between the parties concerning the purpose for which Zimmer offered the excluded expert causation opinions.

According to Kline, Zimmer "was attempting to establish alternative causes of Mr. Kline's injuries ... for the purpose of reducing the noneconomic damages for which it was liable in the damages-only trial." (Italics added.) As to Dr. Sah specifically, Kline claims the purpose of Dr. Sah's proposed testimony was "to identify and prove actual alternative causes [of Kline's injury] ...." (Italics added.) Zimmer, on the other hand, argues it "offered the testimony of its expert Dr. Sah and [Kline's] treating doctors to challenge whether Kline had met his burden of proof on [the causation] issue." (Italics added.) The record supports Zimmer's position.

Starting with Dr. Sah, Zimmer explained in its opposition to Kline's motion to exclude Dr. Sah's testimony that the purpose of such testimony was to "challeng[e] [Kline's] expert's opinion regarding causation ...." Zimmer's offer of proof made in support of that opposition, and which incorporated that opposition by reference, was that Dr. Sah would offer "alternative causes [as] possible explanations for [Kline's] pain," i.e., explanations different than those offered by Kline's expert. When pressed by the trial court on use of the term "possible," Zimmer confirmed it was intentional: "Yes, your Honor. Possible alternative causes that do not rise to the greater than 50 percent chance of causing [Kline's] hip pain." By acknowledging that its evidence would not meet the standard for proving causation, Zimmer made clear that it was not seeking to prove an alternative cause; rather, it sought only to show Kline had failed to carry its burden on causation. Zimmer drove this point home later in the same colloquy: "[The] reasonable degree of medical probability is plaintiff's burden .... [T]o have a defendant state affirmatively that one cause rises to the level of reasonable degree of medical probability is improper burden shifting upon the defendant." From Zimmer's opposition papers, its...