Vossler v. Richards Manufacturing Co.

• Decision Date: 15 June 1983
• Citation: 143 Cal.App.3d 952,192 Cal.Rptr. 219
• Parties: Nellie VOSSLER, Plaintiff and Respondent, v. RICHARDS MANUFACTURING COMPANY, INC., Defendant and Appellant. Civ. 6436.
• Court: California Court of Appeals Court of Appeals

Page 219

192 Cal.Rptr. 219

143 Cal.App.3d 952

Nellie VOSSLER, Plaintiff and Respondent, v. RICHARDS MANUFACTURING COMPANY, INC., Defendant and Appellant.

Civ. 6436.

Court of Appeal, Fifth District, California.

June 15, 1983.

Hearing Denied Sept. 7, 1983.

[143 Cal.App.3d 957] Tuttle & Taylor, C. Stephen Howard, Jeffrey M. Hamerling and Alan D. Smith, Los Angeles, for defendant and appellant.

Richard R. Clifford, North Hollywood, Arthur E. Schwimmer, Los Angeles, for plaintiff and respondent.

OPINION

ANDREEN, Associate Justice.

Defendant Richards Manufacturing Company, Inc. (Richards) appeals from a judgment following jury trial in a products liability case. ¹ No attack is made on the sufficiency of evidence except as to the matter of punitive damages. The judgment was for compensatory damages of $25,000 and punitive damages of $500,000. We affirm.

FACTS

We state the record in a light most favorable to the judgment. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922, 148 Cal.Rptr. 389, 582 P.2d 980.)

In the period from 1970 through 1972, Dr. Leonard Marmor, an orthopedic surgeon working with the defendant corporation, developed a prosthetic device known as the Marmor Modular Knee, which permitted treatment of certain diseases of the knee by inserting specially crafted pieces of metal and plastic onto the surfaces of the bones that make up the knee joint. The metal components of the modular knee were originally produced in three sizes--small, medium and large--and each size included three elements (a template, a trial and a final component), each perfectly matched within a size for implantation. When implanting a metal component, the surgeon used the template to mark and prepare the bone, the trial component to insure that preparation of the bone was accurate, and then cemented the final component permanently in place. An important part of the surgical technique involved placing the final component so that it did not protrude forward of its proper location and impinge upon the kneecap when the knee was flexed.

During 1973 defendant, through engineering error, began manufacturing final metal components of the medium category which were larger than originally designed and which therefore did not match the medium template and trial components. It was thus possible that a surgeon could prepare a bone for insertion of the medium metal component using properly sized medium template and trial components (which were reused from surgery to surgery) and then cement into place a too-large medium final component.

Defendant had no procedure for insuring that the final components it produced were of the proper size, and so it manufactured and sold the larger-than-proper medium final components for some time without discovering the error. In January of 1974, defendant discovered its error, but in order to prevent its competitors from gaining a larger share of the market for such devices, concealed it from the medical profession, from its own sales personnel and from Dr. Marmor. Defendant attempted to replace, on a pretext, all of the properly sized medium template and trial components with newly manufactured larger components, and later attempted to resell the originally designed medium components as a supposedly new "small-medium" size, all without informing anyone outside the defendant corporation of the reason for its actions.

On October 15, 1974, a Marmor Modular Knee was implanted in the right knee of the then 67-year-old plaintiff. One of the metal components used by the surgeon was a medium, and in the subsequent complications and treatment thereof it was revealed that the discrepancy between the older, smaller template and trial components and the larger final component had resulted in improper positioning of the final component, causing impingement on the plaintiff's kneecap which necessitated eventual removal of the kneecap, and other damages.

On the issue of punitive damages, plaintiff proved that the components of the modular knee were actually manufactured by a subsidiary of the defendant and "sold" to defendant for approximately $23 per component, of which 10 percent reflected profit to the subsidiary. Defendant sold the modular knee components to the medical profession for prices ranging during the relevant period from $108 to $140 per component. From January 10, 1973, through April 2, 1973, 4,042 of the medium trial and final components were manufactured. The modular knee components comprised about one-third of the output of the subsidiary that manufactured it. Defendant's sales revenues were approximately $50 million in 1979, and the modular knee was one of 7,000 different products sold by defendant during the relevant period. (Evidence regarding the number of modular knee instrument sets [the template and trial components which were reused from surgery to surgery] in use and the number of implant surgeries performed using medium components was also introduced.)

Defendant sought to introduce testimony relating to the amount of royalties paid to Dr. Marmor in connection with the sales of the modular knee, and an objection on relevancy grounds was sustained. During cross-examination of Dr. Marmor following his rebuttal testimony defense counsel sought to examine him concerning his alleged bias against the defendant, but the trial court would not permit such questions.

During plaintiff's closing argument, defense counsel objected to the statement of plaintiff's counsel that defendant was "... doing over fifty million dollars a year in sales ...," on the grounds that it was unsupported by evidence, irrelevant and prejudicial. The objection was overruled on all grounds.

In the course of deliberations, the jury requested by note an interpretation of certain instructions relating to punitive damages. The court answered the jury's question as follows:

"THE COURT: And what I want to tell you about this, is something that's rather simple, but I want you to listen to it carefully. And that is that there is no fixed relationship prescribed in the law between actual damages and punitive damages.

"That is a matter that's left to your sound discretion, but you should consider it in light of the whole instruction given, 14.71, pages one, and two, including the last two lines of page 29 that you asked me about.

"I can tell you nothing further."

EVIDENTIARY RULINGS

Dr. Marmor testified at length in plaintiff's case-in-chief. Direct and cross-examination during plaintiff's case established that Dr. Marmor had demanded that Richards notify doctors about the change in the configuration of the medium component and indemnify him against any loss due to any malpractice action brought against him due to the mismatch, and that there was serious disagreement between Marmor and Richards as to what should be done to remedy the situation. In addition, there was testimony about litigation brought by Dr. Marmor against Richards because of the manufacturing error, and by way of attempted impeachment of Marmor, Richards read portions of the transcript of that litigation. It was further shown that Dr. Marmor and plaintiff's treating physician, Dr. Williams, were colleagues and had socialized, and that when Dr. Williams experienced problems in surgery with plaintiff's knee, he called Dr. Marmor. The same day that Dr. Williams phoned, Dr. Marmor and his attorney traveled from Los Angeles to Tulare to meet with Dr. Williams in order to gather evidence for Marmor's case against Richards. It was established that Dr. Marmor had sought the testimony of other surgeons for use in his litigation against Richards. The jury also learned that Dr. Marmor would not permit Richards' salesmen to attend his seminars, and that he insisted that his name be removed from the product.

After the defense case, Dr. Marmor was recalled by plaintiff in rebuttal and examined concerning the nature of the fracture of plaintiff's femur following implantation of the modular knee, the size of the template and final components used in implantation, and the cause of certain damage to plaintiff's kneecap, all as revealed by previously introduced evidence. On cross-examination, after questioning relating to the rebuttal testimony, defense counsel proposed to question Dr. Marmor concerning his general bias against defendant. Following a nonreported conference at the bench, defense counsel announced the ruling of the court in a reported conference at the bench. ²

It was well within the discretion of the trial court to preclude such cumulative and time-consuming duplication of inquiry. (People v. La Macchia (1953) 41 Cal.2d 738, 743-744, 264 P.2d 15; People ex rel. Dept. Pub. Wks. v. Miller (1964) 231 Cal.App.2d 130, 134, 41 Cal.Rptr. 645; People v. Flores (1977) 71 Cal.App.3d 559, 565-566, 139 Cal.Rptr. 546.) In a trial that had already consumed 13 court days and would last for another 5, no abuse of discretion appears from a limitation of cross-examination on a subject previously well covered by the defense. ³

The second evidentiary error claimed by defendant relates to the exclusion of testimony which would have shown the amount of royalties paid by defendant to Dr. Marmor. After establishing that such royalties were paid, an objection to the question as to amount was sustained on the grounds that it was irrelevant. Defendant's attempt to characterize this evidence as rehabilitative towards its expert, Dr. Bechtol, is disingenuous. It had already been shown that both Drs. Marmor and Bechtol received royalty payments from defendant. The notion that the jury would (or should) have compared the amounts paid to each expert (by the same party) in weighing their credibility is more a product of defendant's disappointment with the result of the trial than any reasoned analysis of its processes.

The trial court has very broad discretion in admitting or excluding evidence. (Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384, 94...