Plaintiff’s counsel committed misconduct during trial by belittling and mocking defendant’s witnesses and counsel as well as the trial court, by violating (although only minimally) in limine orders, and by appealing to the jury’s emotion during closing argument.  This decision holds, however, that in light of the strong evidence of liability, and defendant’s failure to object to much of the misconduct, that the misconduct was not sufficiently prejudicial as to require a retrial on the issue of liability.  However, the court does find that the award of $5 million in noneconomic damages was excessive, the result of passion and prejudice abetted by plaintiff’s counsel’s misconduct. This case involved a knee injury from implanting a medical device.  While the injury was painful and required several surgeries to repair, the plaintiff had largely recovered and had few residuals.  Noneconomic damages are reduced to $1.3 million, and the punitive damage award against the individual doctor defendant is reduced from $500,000 to $150,000 as the jury award constituted an unacceptably high percentage of the doctor’s net worth.

California Court of Appeal, Fourth District, Division 1 (Haller, J.); October 28, 2016; 2016 WL 6311108