Judge: Mark H. Epstein, Case: 22STCV04271, Date: 2023-03-13 Tentative Ruling

Case Number: 22STCV04271    Hearing Date: March 13, 2023    Dept: R

The motion for leave to add a request for punitive damages is GRANTED.

Plaintiff sues for medical malpractice.  Plaintiff claims that he underwent eye surgery for a cataract.  As part of that surgery, plaintiff had to choose the appropriate lens to be implanted.  He asserts that he discussed the matter with defendant and chose the Vivity IOL.  He further asserts that he later did independent research and the research confirmed his decision.  Plaintiff contends that he confirmed his choice with defendant both orally and in writing.  On the day of the surgery, however, even though plaintiff was again trying to confirm his choice, defendant decided to use a different lens.  Plaintiff alleges that defendant presented him with this information while he was under sedation, strapped down, and about to be wheeled into the operating room.  Defendant in fact did implant a different lens and plaintiff complains that he has suffered negative post-surgery effects as a result.

Through the instant motion, plaintiff asks to amend to assert punitive damages pursuant to Code of Civil Procedure section 425.13, which requires plaintiff to show a “substantial probability” of a punitive damage award.  For a while, many courts believed that the statutory language was intended for the court to act as a robust gatekeeper, allowing only strong cases to get to a jury.  Our Supreme Court, however, definitively rejected that approach in College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704.  There, the Court interpreted the statute to be designed to eliminate frivolous punitive damages claims, but not to usurp the jury’s traditional role.  Thus, to satisfy the statute, the plaintiff must allege facts that, if true, would support a punitive damage award and also present evidence that, if believed, would justify the award.  The court cannot weigh the evidence submitted in support of and opposition to the motion, however.  If there is a triable issue, the motion must be granted.  In this way, the test is similar to that of a summary adjudication motion.  The major difference, as the court sees it, is that the defendant need not “shift the burden” to require plaintiff to make a showing; plaintiff must make a showing in the first instance.

In light of that test, the motion is relatively straightforward.  The court believes that seeking consent for a surgical change in the lens while the patient is sedated, strapped down, and about to be wheeled into surgery after the patient has articulated a strong insistence on a particular lens is sufficiently oppressive to justify a punitive damage award.  And plaintiff’s evidence is sufficient to establish at triable issue of fact as to whether that actually occurred.  Defendant presents contrary evidence, and a jury might well believe that evidence.  But weighing the evidence is not the court’s job at the moment.  The court agrees with defendant that plaintiff’s evidence, if believed, must be sufficient to meet the clear and convincing standard, not just the preponderance of the evidence standard, but the evidence here is sufficient for that.  Even with the clear and convincing standard, the court’s job is not to weigh competing versions of the facts. 

The motion is, therefore, GRANTED.