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Sherman v. Kinetic Concepts Inc.11/17/1998
CERTIFIED FOR PUBLICATION
(Super. Ct. No. 726387)
Appeal from a judgment and order of the Superior Court of Orange County, Phillip E. Cox, Judge. (Retired Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article IV, ยง 6 of the Cal. Const.) Reversed and remanded.
Robert and Janice Sherman appeal from a judgment following a jury trial of their product liability/negligence action against Kinetic Concepts, Inc. (KCI). Sherman contends the court should have granted a new trial and imposed sanctions against KCI for litigation improprieties, including its failure to disclose certain evidence during discovery.
We agree. As we will explain, throughout the litigation, KCI failed to produce and concealed the existence of crucial documents relating to material issues in the Shermans' lawsuit. Compounding that inexcusable dereliction of its discovery obligations, at trial KCI created the false impression its product rarely malfunctioned and then with only transient, inconsequential effect on the consumer. In truth, the dozens of undisclosed incident reports told a far different story about both the frequency and gravity of the problem. To Sherman's prejudice, the jury never had a chance to evaluate liability against the backdrop of the big picture.
Fortuitously learning of the evidence just after the verdict, the Shermans moved for a new trial. The court denied them relief. It further concluded it was without jurisdiction to award them sanctions under the discovery statute at such a late date.
The court erred on both counts. With regard to a new trial, relief was mandated on the basis of newly discovered evidence and irregularity in the proceedings depriving the Shermans of a fair hearing. The documents and related information KCI withheld were material to design defect and negligence, strengthened the plaintiffs' case and diluted or even impeached KCI's evidence.
As for discovery sanctions, the court had not only the power, but the duty to sanction KCI, in a monetary amount at least sufficient to cover all the costs incurred by the Shermans, including attorney fees, in going through a trial which must now be redone. Because KCI's conduct subverted Justice, this was the sanction necessary "to prevent abuse of the discovery process and correct the problem presented [citations]." (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210.)
We publish our opinion not only because this is a case of first impression, but because we wish to send a loud and clear message to litigants and counsel alike: We will not tolerate the disgraceful tactics which hallmark the defense in this action. We intend to ensure that any victory achieved by such methods and challenged in this court will be short-lived and costly.
Factual and Procedural Background
On March 5, 1993, Robert Sherman (Sherman), a quadriplegic, was admitted to a hospital for post-surgical treatment of a decubitis ulcer on his left buttock. His physician ordered a special therapeutic bed for Sherman. The hospital provided him with a Fluid Air bed supplied by KCI. The frame of the unit holds a basin or tray filled with sand-grain size silicon glass beads coated with an antibacterial agent. The beads are contained within a filter sheet. On top of that, there is a gore-tex cover. Forced air constantly circulates the beads, causing them to flow like liquid beneath the filter sheet. The forced air also billows the gore-tex cover, creating a cushioned surface which eliminates pressure points.
A few nights before the subject incident, the attending nurse entered Sherman's room on a routine check. She
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