Judge: Loren G. Freestone, Case: 37-2019-00027996-CU-PL-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Product Liability Motion Hearing (Civil) 37-2019-00027996-CU-PL-CTL MITRIONE VS BREG INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Breg Inc.'s motion to contest Defendant David Higgins M.D., P.C.'s application for determination of good faith settlement is DENIED.

Standard In the seminal case Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the California Supreme Court identified the following nonexclusive factors courts must consider in determining whether a settlement is in good faith: 'a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interest of nonsettling defendants.' (Id. at p. 499.) A court 'not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-a-vis other parties alleged to be responsible for the same injury.' (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) Although Civil Code section 1431.2 generally eliminates joint and several liability for noneconomic damages, a settlement that does not distinguish between economic and noneconomic damages may be deemed in good faith by considering the total amount of damages and the total amount of the settlement-with any allocation to be made at a later date. (See Dole Food Co. v. Superior Court (2015) 242 Cal.App.4th 894, 913–919.) 'The party asserting the lack of good faith shall have the burden of proof on that issue.' (Code Civ.

Proc., § 877.6, subd. (d).) 'That party must show that the settlement is so far 'out of the ballpark' as to be inconsistent with the equitable goal of section 877.6.' (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 873–874 [settlement equating to 2% of $10 million damages not in good faith based on evidence that settling physician bore significant responsibility for patient's harm].) Rough Approximation of Total Recovery/Proportionate Liability/Amount of Settlement Calendar No.: Event ID:  TENTATIVE RULINGS

3096276  42 CASE NUMBER: CASE TITLE:  MITRIONE VS BREG INC [IMAGED]  37-2019-00027996-CU-PL-CTL 'The settling party's proportionate liability is one of the most important factors.' (Long Beach Memorial, supra, 172 Cal.App.4th at p. 873.) This is the focus of Breg's motion.

Breg argues that Mitrione sent it a settlement demand for $6.75 million. Breg also argues that Higgins bears the brunt of responsibility because Higgins never read the instructions for use for the Glacier device, did not properly instruct Mitrione on using the device (e.g., giving inconsistent instructions, failing to distinguish between CTDs and traditional modalities, and leading Mitrione to believe she should ice as much as possible), had never heard of full thickness skin necrosis, and did not provide proper care when the cold therapy began damaging the skin on her knee (e.g., not asking how much she was using the device and never telling her to stop using it). Breg argues that the $925,000 settlement, equating to 14% of the approximate total recovery, is too low and not in good faith.

Higgins argues that Mitrione's expert calculated her economic damages as only approximately $600,000, and it cites Bigler-Engler v. Breg Inc. (2017) 7 Cal.App.5th 276 as support that her total noneconomic damages are only approximately $1.3 million. Higgins also argues that Breg bears the brunt of responsibility because it designed and manufactured the device, Higgins acted as a medical provider and therefore is not strictly liable, Higgins had no prior knowledge that the device carried a risk of a NFCI, Breg had such prior knowledge having been a named defendant in several lawsuits involving its Polar Care line of cold therapy devices, the instructions Higgins failed to read were inside the sealed box containing the device and therefore not accessible to it, and Breg never provided any other instructions or warnings to it on the risks associated with the device. Higgins also argues that Breg was assigned 40% responsibility in Bigler-Engler for its defective design and inadequate warnings on a similar device, and unlike the medical group and doctor in that case who were collectively assigned the remaining 60% responsibility, it did not persuade Mitrione into purchasing the device, did not maintain an intimate relationship with Breg to sell more devices, and did not conceal known risks.

In reply, Breg argues that the $600,000 estimate for economic damages is limited to amounts for future care and does not include past medical expenses. Breg also argues the $1.3 million estimate for noneconomic damages is too low because the Bigler-Engler court remitted the non-economic damages award to that amount based in part on misconduct by the plaintiff's attorney, and it is unclear 'what award the jury would have returned absent said misconduct.' (Emphasis in original.) Breg also notes that Higgins did not dispute that it bears responsibility for how it responded when Mitrione's knee began turning black, which in that way makes it more culpable than the medical group and doctor in Bigler-Engler. And whereas the warnings provided with the device at issue in Bigler-Engler did not specifically warn of the risk of symptoms of an NFCI, both the instructions for use and the operating instructions for the Glacier device at issue identify necrosis as a risk, reducing its culpability.

Although Mitrione's settlement demand is relevant in approximating her total recovery, it is not dispositive, particularly given the absence of any evidence as to how that demand was calculated. The goal is approximating 'what the plaintiff would actually recover.' (See Dole, supra, 242 Cal.App.4th at p. 912.) In the words of Judge Highberger: '[A]ny experienced civil judge (or personal injury litigator) knows that there is a huge variance between a plaintiff's 'best case' demand and associated hopes for a heroic victory at trial a compared to the much more common reality that some more pallid amount is awarded by a jury in due course once a typical personal injury case is tried.' (See Dole, supra, 242 Cal.App.4th 906–907; see also Erreca's v. Superior Court (1993) 19 Cal.App.4th 1475, 1498 [approving settlement valuing claim at $300,000 even though demand valued claim at $2 million].) Approximating noneconomic damages is no small feat. (See Bigler-Engler, supra, 7 Cal.App.5th at p. 300.) Here, Mitrione is a young woman who suffered a non-freezing cold injury resulting in a large black area of necrotic tissue over her knee, causing pain and requiring multiple surgical procedures.

Bigler-Engler involved similar facts, and therefore Higgins' reference to that opinion as an aid in approximating such damages is appropriate. Breg's argument that a jury would have awarded more than the remitted $1.3 million is belied by its own briefing in Bigler-Engler, wherein Breg asserted that 'no reasonable jury could have awarded more than $175,000 in total noneconomic compensatory damages.' (See Bigler-Engler, Breg's Opening Brief, 2014 WL 1663312 at *45–45.) Calendar No.: Event ID:  TENTATIVE RULINGS

3096276  42 CASE NUMBER: CASE TITLE:  MITRIONE VS BREG INC [IMAGED]  37-2019-00027996-CU-PL-CTL Approximating economic damages is somewhat easier. (See Tech-Bilt, supra, 38 Cal.3d at p. 500.) Both parties appear to agree that estimated future economic damages appropriately include the approximately $600,000 life care calculation by Mitrione's experts. Breg correctly notes that this amount does not account for past medical expenses, which includes three skin debridement procedures, a skin grafting surgery, a revision procedure, and a 19-day hospital stay-although it does not provide evidence as to the recoverable cost of this past care.

As to the parties' proportionate liability, the facts of this case are not identical to Bigler-Engler. Both Higgins and Breg are in some ways less culpable than their counterparts in that case. Nonetheless, their relative culpability appears to be largely the same as in that case.

Having taken everything into account, the court roughly approximates Mitrione's total damages to be $2 million. The court also roughly approximates fault to be 60% Higgins and 40% Breg. The unallocated $925,000 settlement is therefore approximately 77% of Higgins' total potential liability-still reasonably within the proverbial ballpark.

Remaining Factors Breg does not address the remaining factors.

The 'allocation of settlement proceeds among plaintiffs' neither weighs in favor of or against good faith.

There is only one plaintiff, so this factor is not applicable. (See Dole, supra, 242 Cal.App.4th at p. 909 [noting the Tech-Bilt factors 'may not apply in all cases'].) The 'recognition that a settlor should pay less in settlement than he would if he were found liable after a trial' weighs in favor of good faith. Although the settlement is not the entire amount of Higgins' potential liability, a discount is appropriate to account for the time, expenses, and risks avoided. (See Horton v. Superior Court (1987) 194 Cal.App.3d 727, 736 [total potential liability must be 'discounted for settlement purposes based on the savings in trial time, defense costs, attorneys' fees and the avoidance of the risk inherent in every trial of a verdict or judgment larger than expected'].) The 'financial condition' of the settling defendant is neutral. Higgins did not present evidence of its financial condition, but neither did Breg, who bears the burden of proving the settlement is not in good faith. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 968.) The 'insurance policy limits of settling defendants' weighs in favor of good faith. Higgins has $1,000,000 in insurance coverage for this incident. The settlement is therefore almost policy limits. (Compare Long Beach, supra, 172 Cal.App.4th at p. 875 [physician's settlement for only 10% of policy limits weighed against good faith].) The absence of 'existence of collusion, fraud, or tortious conduct aimed to injure the interest of nonsettling defendants' weighs in favor of good faith. Higgins submits evidence that the settlement was reached after 'a close evaluation of the records and evidence in this case, and following arm's length negotiations.' (See Turcon Construction Inc. v. Norton-Villiers, Ltd. (1983) 139 Cal.App.3d 280, 283 [evidence that settlement was 'reached before a judge after several days of discussions' weighed in favor of good faith].) Conclusion The court has considered the Tech-Bilt factors and the evidence and arguments presented. Having taken everything into consideration, the court finds that Higgins' settlement is in good faith and that Breg failed to meet its burden of showing otherwise. The motion is therefore denied.

Higgins is directed to submit a proposed order denying Breg's motion and determining the settlement to Calendar No.: Event ID:  TENTATIVE RULINGS

3096276  42 CASE NUMBER: CASE TITLE:  MITRIONE VS BREG INC [IMAGED]  37-2019-00027996-CU-PL-CTL be in good faith.

Calendar No.: Event ID:  TENTATIVE RULINGS

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