Bledsoe v. Monster Beverage Corp. CA4/2 (2021) · DecisionDepot
Bledsoe v. Monster Beverage Corp. CA4/2
California Court of Appeal Apr 6, 2021 No. E072569AUnpublished
Filed 3/25/21 Bledsoe v. Monster Beverage Corp. CA4/2 Repost with correct version
Public—Redacts material from sealed record NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
CODY DEAN BLEDSOE,
Plaintiff and Appellant, E072569
v. (Super.Ct.No. RIC1412551)
MONSTER BEVERAGE OPINION CORPORATION et al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge.
Affirmed.
Parris Law Firm, Khail Parris; Burrage Law Firm, David Burrage; Whitten
Burrage Firm and Randa Reeves for Plaintiff and Appellant.
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Shook, Hardy & Bacon, Frank C. Rothrock, Gabriel S. Spooner and Victoria P.
McLaughlin for Defendants and Respondents.
After suffering a cardiac arrest which caused permanent brain damage, Cody
Bledsoe filed a lawsuit against Monster Beverage Corp. (Monster), alleging his
consumption of their energy drink (Monster Energy) caused his injuries. He made several
claims against the company on theories of product liability, negligence, fraudulent
concealment, and deceptive trade practices. In their defense, Monster planned to show
(which thickens blood and increases the risk of clotting), vasoconstriction (narrowing or
constricting of the blood vessels), and prolongation of the QT interval (or, the time it
takes the heart to relax after contracting and reset itself for the next heartbeat).
He summarized for the jury three published case studies that demonstrate the
cardiovascular effects caused by Monster Energy. In one study, published in a 2014 letter
to the editor of the International Journal of Cardiology, a healthy, 31-year-old volunteer
drank two 16 ounce cans of Monster Energy over a 45-minute period. The study reported
that EKGs administered about five hours later reflected prolonged QT intervals. In the
second study, published in 2017 in the World Journal of Cardiology, 11 medical students
fasted, drank one 24 ounce can of Monster Energy in one minute, then submitted to
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various tests 90 minutes later. The report concluded there was an association between
consumption of Monster Energy and two biological effects: platelet aggregation and a
decreased neurological ability to control the dilation or constriction of blood vessels. The
third study was conducted by the same principal as the second and was published in an
abstract article in Circulation in 2018. Four healthy medical students each drank one 24
ounce can of Monster Energy and were tested 90 minutes later. This study concluded
there was an association between the energy drink and three biological effects:
vasoconstriction, increased heart rate, and increased blood pressure.
In Dr. Lipshultz’s opinion, the taurine and guarana in Monster Energy had a
synergistic effect when combined with caffeine, meaning the combined effect of the
ingredients is greater than the sum of each ingredient’s effect on its own. As in, “one plus
one plus one is greater than ten.” To support this conclusion he explained, “when we look
at studies . . . of healthy people who get a caffeinated beverage versus a Monster Energy
Drink . . . the effect on some of these same [biological effects] is greater than just
caffeine alone.”
In reaching his specific opinion about the cause of Bledsoe’s cardiac arrest, Dr.
Lipshultz came up with a “range of Monster Energy beverage that [Bledsoe] consumed”
in the 24 hours before his cardiac arrest: anywhere between two and four 16 ounce cans.
He explained that this quantity of Monster Energy combined with certain environmental
factors, created a “perfect storm” for a ventricular fibrillation. He said Bledsoe was part
of a particularly vulnerable or high risk population when it came to energy drink
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consumption because he was also taking allergy medication (Allegra) and was under a lot
of stress in the 24 hours before the incident, helping prepare for his brother’s wedding.
Dr. Lipshultz dismissed the possibility Bledsoe had choked because there was no
evidence he had petechiae (burst blood vessels on the face) or cyanosis (blue
discoloration of the lips). He also pointed out that the paramedics’ notes reflect they were
able to intubate Bledsoe without incident, which, he believed, wouldn’t have been
possible if he had choked because there would be food wedged in his trachea.
On cross-examination, he admitted he had reached his opinion about the
cardiovascular dangers of Monster Energy without knowing the amounts of the
ingredients in the drink. He also admitted he didn’t know how much Monster Energy
Bledsoe had ingested in the 24 hours before his cardiac arrest.
2. Dr. Shah
Dr. Anjan Shah is a board certified pediatric cardiologist and a general physician.
He shared Dr. Lipshultz’s opinion that the ingredients in Monster Energy caused
cardiovascular effects that lead to ventricular fibrillation and that Bledsoe’s cardiac arrest
was the result of his consumption of Monster Energy.
Dr. Shah said cardiovascular complications from energy drink consumption was
becoming an “increasing problem” he was seeing in his practice. “I see patients all the
time who have various different types of cardiovascular complications from taking in
substances or whatnot. In this case, specifically Monster. I probably see at least one or
two patients a month that have some sort of symptoms, be it from palpitations or chest
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pain or passing out, who—it’s due to their having excessive consumption of Monster.
And these are mostly teenage kids that I’m seeing, and . . . I restrict them from having
Monster and they tend to get better.” Like Dr. Lipshultz, he also relied on the three case
studies involving Monster Energy as evidence the product is dangerous to one’s
cardiovascular health.
Dr. Shah had examined Bledsoe in 2015. He ran various genetic tests to look for
mutations or disorders that would affect his heart and potentially cause a cardiac arrest,
but found none. He said Bledsoe’s EKGs indicated he had early repolarization syndrome,
an abnormality in the heart’s electrical system that effects the way the heart relaxes after
a contraction to reset for the next heartbeat. He said in some cases the syndrome can be
dangerous or life-threatening, but he had concluded in Bledsoe’s case the syndrome was
benign.
Dr. Shah also believed Bledsoe was particularly vulnerable to the effects of
caffeine at the time of the incident, because he was also taking allergy medication and
was under a lot of stress. Like Dr. Lipshultz, he also assumed Bledsoe drank between two
and four 16 ounce cans of Monster Energy before his cardiac arrest.
On cross-examination, Dr. Shah admitted he didn’t know the amounts of the
ingredients in Monster Energy. He also admitted he based his assumptions of how much
Monster Energy Bledsoe drank before the incident off what Kathy had told him about her
son’s consumption. He explained, “we had to acknowledge that it was a large enough
amount. So, you know, I don’t know the exact amount, but it was probably, you know, in
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the two- to four-can range where it would be in the—in the range where it would
potentially be significant.” He was unaware of Kathy’s deposition testimony where she
admitted she hadn’t actually seen Bledsoe drink any Monster Energy on January 3 or 4,
2013.
Dr. Shah admitted he didn’t know which allergy medication Bledsoe was taking at
the time of the incident. When asked why he believed Bledsoe had been under a lot of
stress, he said it was his understanding Bledsoe had been up late studying for exams.
When counsel informed him the incident occurred during winter break and that Bledsoe
wasn’t in school at the time, Dr. Shah responded, “I don’t know whether he was studying
or what he was doing, . . . but he was up doing activities. And if you’re up at those hours,
you’re generally doing something that is going to cause you some degree of stress.”
On redirect, when asked whether he still believed Bledsoe’s cardiac arrest was
caused by energy drink consumption, Dr. Shah said, “I think it’s—it’s medically certain.
I mean, . . . there’s nothing else that could have caused it.”
3. Kathy Bledsoe
Kathy said her son was a regular drinker of Monster Energy. She estimated she
saw him drink two to three cans a week. When she left for work around 10:00 a.m. on
January 3, 2013, he was playing video games in the living room. She noticed there was a
Monster Energy can next to him, but she didn’t see him drink out of it.
She left for work and didn’t see him again until around 9:00 that evening, when he
arrived at the hall to help decorate for Trey’s wedding. She said the hall was large and
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she was busy decorating, so she didn’t see whether he drank anything while he was there.
Around 2:00 a.m., he said goodbye to her and left because he was tired. About a half-
hour later, she called him and asked him to take out the trash.
When she got home around 4:00 a.m., she found her son in the living room, lying
face down on the floor, unconscious. She dialed 911 and moved the coffee table next to
him to make space for CPR. She recalled that a can of Monster Energy fell off the table
as she was moving it and spilled on Bledsoe (she didn’t know if it was the same can she’d
seen in the living room that morning). Trey came home then and started CPR while she
talked to the dispatcher.
The paramedics arrived and were able to revive Bledsoe. They took him to
Arlington Hospital, where he stayed for two weeks, recovering from his cardiac arrest
and resulting anoxic brain injury (which occurs when the brain is deprived of oxygen).
He was then transferred to a different hospital, in Dallas, where he underwent surgery to
have an intracardiac defibrillator (ICD) implanted in his heart, a device that detects
arrythmias and arrests and administers a shock to reset the heart.
Kathy said as a result of his brain injury, her son suffers from double vision, slow
speech, myoclonus (involuntary muscle seizures), difficulty walking, and weakness in his
left side. He uses a walker for short distances and a wheelchair for longer distances and
he can no longer drive.
On cross-examination, Kathy said Bledsoe had been a habitual caffeine drinker,
consuming, on average, a large iced tea and about two to three cans of Dr. Pepper or
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Mountain Dew a day, in addition to energy drinks. He would also occasionally drink
Starbucks coffee.
Kathy said Bledsoe still drinks caffeine, but no longer drinks Monster Energy.
Since his cardiac arrest, his ICD has administered a shock to his heart on three separate
occasions.
4. Trey Bledsoe
Trey said he came home from the hall around 4:00 a.m. to find his mother on the
phone with 911, next to his brother. He immediately started CPR. He distinctly
remembered that as soon as he started mouth-to-mouth, his brother let out a long belch
that smelled like sour cream and onion pringles. He adamantly denied removing any food
from his brother’s mouth and maintained the officer who wrote the police report was
mistaken.
On cross-examination, Trey said Bledsoe regularly drank a range of caffeinated
beverages before the incident (including other energy drinks like Red Bull and Redline)
and still drinks iced tea. He estimated his brother used to drink about two to three cans of
Monster Energy a week.
5. Ruth Boyer
Ruth dated Bledsoe from 2011 until 2015 and has known him for most of her life.
She recalled that when he picked her up to decorate the hall, he had a can of Monster
Energy in his cupholder. She didn’t see him much while they were decorating, but
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remembers that at some point she saw him take a sip from a can of Monster Energy. She
didn’t know whether it was the same can from the car.
Ruth said Bledsoe would regularly drink about three cans of Monster Energy a
week. He also regularly drank sodas and iced tea, and sometimes he would drink another
brand of energy drink called 5-hour Energy.
6. Lizzie Danley
Lizzie Danley is Kathy’s longtime friend and has known Bledsoe for most of his
life. She was at the hall that evening and remembers him “goofing off” with his friends,
hanging out and playing leapfrog. She couldn’t remember if she’d seen him with a can of
Monster Energy that night, but said that he often drank Monster Energy. She recalled a
time she had borrowed his car and there were empty water bottles and Monster Energy
cans littering the floorboards.
7. Dr. Graceffo
Dr. Graceffo was Bledsoe’s treating cardiologist at Arlington Hospital. He didn’t
make any determination about the cause of his cardiac arrest, and he hadn’t seen Bledsoe
or spoken with him or his family since he was discharged from the hospital.
8. Dr. Davis
Finally, Bledsoe played a video clip from the deposition of Dr. Thomas Davis,
Monster’s Chief Scientific Officer, in which he agreed that consuming Monster Energy
could possibly increase blood pressure and heart rate “depending on the amount you
drink.”
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D. Monster’s Case
Monster presented evidence from eight witnesses—six experts plus video clips
from the depositions of the two police officers who responded to Bledsoe’s home on the
morning of the incident.
1. Officer Petty and the police report
Officer Robert Petty had been a police officer for 16 years. He responded to the
Bledsoe home on January 4, 2013 and conducted interviews of Kathy and Trey shortly
after the paramedics had arrived. He completed the report through dictation shortly after
the interviews, in the early morning hours of January 4. He recalled the incident and the
interviews, and he confirmed Trey had told him he’d removed a large piece of food from
his brother’s mouth.
The police report says: “I arrived on scene at approximately 0411 hrs and upon
arrival I met with EMS and Fire personnel who[] were in the living room of the residence
conducting CPR on the patient who was later identified as Cody Bledsoe . . . Also at the
location was the patient’s mother who was identified as Kathy Bledsoe [] along with the
patient’s older brother who was identified as Trey Bledsoe [].
“I spoke with the patient’s mother and older brother whom advised that they had
been at the Knights of Columbus Hall on Cooper St preparing and decorating for a
wedding on Saturday. Both subjects advised that approximately 0200 hrs the patient
advised that he was tired and was going to go home and get some sleep. Both field
contacts advised that they had returned home at approximately 0400 hrs where they had
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located the patient lying face down on the floor in the living room. Trey Bledsoe advised
that he had went over to roll his brother over and determined that he was not breathing
and was unresponsive. He began CPR as his mother contacted 911. Trey also advised that
as he was beginning CPR that there was a large piece of food lodge in his brother’s
mouth. He advised that EMS then responded to location and began and continued with
the CPR efforts. Patient does have Hypoglycemia but no other medical conditions and is
not under the Doctor's care. There is no history of drug or alcohol use and is unknown
why the subject had collapsed and was found unresponsive. The location was secured
upon their arrival and there was no disruption at the location. . . .”
“[Redacted material] This is based on the fact that there was a plate with food
down near the patient and based on the fact that the patient’s brother had located food in
the subject’s mouth.” (Italics added.)
2. Detective Vara
Detective Alexandra Vara said she remembered responding to the Bledsoe home
because it had “stood out a little bit more than any other call.” She remembered the older
brother was supposed to be getting married that day and that someone from the fire
department had accidentally hit one of the Bledsoes’ cars when they pulled up to the
home. “[A]nd I just remember feeling really sorry for them because they’d already been
through an unfortunate event and then for their vehicle to also be struck by the fire
engine.” She confirmed that near Bledsoe she had seen a plate of food, which she
believed was pizza.
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3. Expert testimony
a. Ingredient safety
Dr. Ashley Roberts, a food scientist with a Ph.D. in toxicology, had analyzed each
of the ingredients in Monster Energy and concluded they are safe for human consumption
at the levels present in the drink. He also concluded there is no adverse synergistic effect
from the combination of the ingredients. He explained that taurine is an amino acid that
we produce naturally and that is present in a wide variety of foods, including meat and
fish, and guarana is an herbal extract that contains a small amount of caffeine. He found
the only ingredients in the drink that interact with each other are caffeine and taurine, and
taurine reduces the cardiovascular or stimulant effects of caffeine.
To reach these conclusions, Dr. Roberts followed the process the FDA uses to
determine whether an item is “generally recognized as safe” or “GRAS”—he and his
team drafted a report detailing their analyses and conclusions, which they then submitted
to a panel of experts in the field of food safety. The panel agreed with Dr. Roberts’
assessment, that the ingredients in Monster Energy are safe for consumption.
Monster presented two other experts on ingredient safety. Dr. David Johnson is an
Associate Professor of Pharmacology at Duquesne University in Pennsylvania. He
analyzed each of the ingredients in Monster Energy and concluded they are safe
individually and in combination. He also found no synergistic effect among the
ingredients. He explained that caffeine doesn’t become toxic until you ingest about 10
grams, and because there is only 166 milligrams of caffeine in a 16 ounce can of Monster
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Energy, a person would have to drink 62 cans to consume a toxic amount of caffeine. He
explained that if a person who had not built up a tolerance to caffeine drank multiple cans
of Monster Energy, they may experience jitteriness or nausea, “but when it comes to
something like ventricular fibrillation, the caffeine in a Monster Energy would not cause
that.”
Dr. Jeffrey Brent is a board certified physician in medical toxicology and also
holds a Ph.D. in biochemistry. His practice focuses on the intensive care of patients who
have been poisoned (by, for example, hazardous materials or snake venom) or are
suffering from substance abuse. He also studied the ingredients in Monster Energy and
concluded they are safe alone or in combination. He said that a medium Starbucks coffee
contains 330 milligrams of caffeine, which is over twice the amount of caffeine in a 16
ounce can of Monster Energy.
b. Choking as the cause of Bledsoe’s cardiac arrest
Dr. Martin Tobin is a physician who is board certified in pulmonology, internal
medicine, and critical care. He has written 16 books in the field of pulmonology and
served as the Editor in Chief of the American Journal of Respiratory and Critical Care
for five years. Based on his review of Bledsoe’s medical records, the police report, and
the deposition testimony of various witnesses, he reached the conclusion that his cardiac
arrest was caused by food asphyxiation, or choking.
He said choking is the sixth most common cause of death and explained that,
contrary to Dr. Lipshultz’s understanding, asphyxiation is not always caused by food
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becoming lodged in the trachea. He said a person can choke when food becomes lodged
in the back of their mouth or upper throat (in medical terminology, the oropharynx). Food
that is stuck in this location will block the air that would normally come through the nasal
passage. When this happens, a person will usually try to swallow the food or breath in
through their mouth, both of which result in a negative pressure that keeps the food in
place. “[B]y doing what anybody would do, trying to breathe past it, then the negative
pressure in your thorax will be transmitted up to your upper airway,” and the “walls of
your upper airway will just come in” and you will “turn a partial blockage into a
complete blockage.” Significantly, when food is lodged in the back of the mouth, it can
press against a bundle of nerves located in the upper airway called the “vagus nerve.”
When the vagus nerve is stimulated, it causes the heart rate to slow. If the food remains in
place, “that slowing of the heart rate can progress, causing a full-blown cardiac arrest.”
Dr. Tobin said the evidence indicated that this is precisely what happened to
Bledsoe. The report from the paramedics reflects that Bledsoe’s initial EKG reading, at
4:15 a.m., was “asystole,” meaning his heart had flatlined or stopped beating. This, he
explained, is inconsistent with Bledsoe’s experts’ opinion that he suffered an arrythmia or
ventricular fibrillation.
The paramedics’ report also reflects that when they inserted an endotracheal tube
into Bledsoe’s airway, they found high levels of carbon dioxide, which is what you’d
expect to see if a cardiac arrest is the result of asphyxiation. In addition, Bledsoe’s
charting notes say the physician heard “rhonchorous” breathing through the stethoscope,
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which is also consistent with food asphyxiation. “If somebody has a pure cardiac arrest,
you do not expect to be hearing any sounds that are occurring within the lungs. He’s
describing the lungs that are telling you that there is some obstruction in the airways.”
Finally, the x-rays taken of Bledsoe shortly after the incident show that his lungs
contained “pulmonary infiltrates,” or particles, another common consequence of food
asphyxiation. In fact, the physician who administered the x-rays wrote a note that says
“aspiration v. CHF”—meaning choking versus congestive heart failure—and had Bledsoe
put on Zosyn, an antibiotic that prevents infection from developing in the lungs as a result
of infiltrates. Responding to Dr. Lipshultz’s comments about the absence of petechia and
cyanosis, Dr. Tobin said that pulmonologists do not view either as a common sign of
choking.
c. Bledsoe’s early repolarization syndrome
Dr. Hugh Calkins is a board certified cardiologist and electrophysiologist. He went
to Harvard Medical School and is currently the head of electrophysiology at Johns
Hopkins Hospital. Dr. Calkins reviewed Bledsoe’s medical records and medical history
and, like Dr. Shah, concluded he has early repolarization syndrome. The syndrome is “an
electrical abnormality of the heart” that predisposes patients to “a high risk of sudden
cardiac death.” He said the syndrome is responsible for 31 percent of unexplained cardiac
arrests.
Dr. Calkins showed the jury how three of Bledsoe’s EKGs—one taken the day
after his cardiac arrest and two taken months after—contained classic indicators of early
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repolarization syndrome. He also explained that Bledsoe’s “clinical course” both before
and after the incident was “very consistent” with the syndrome. About a year before the
incident, Bledsoe had passed out during class, an event his physician had mistakenly
attributed to possible hypoglycemia. After the incident, he had suffered at least three
cardiac incidents, all of which Dr. Calkins believed would have been cardiac arrests had
Bledsoe’s ICD not activated and administered a life-saving shock. Dr. Calkins explained
that if someone has early repolarization syndrome, you would expect them to have
multiple incidents, like Bledsoe has had, because you are born with the syndrome and it
lasts your entire life. ICDs or defibrillators “get put in for a lifetime because your risk of
cardiac arrest is there as long you’re alive. [Bledsoe] was born with this abnormality.”
In Dr. Calkins’ opinion, Bledsoe’s choking likely triggered his heart’s inability to
reset after contracting by stimulating his vagus nerve. “[W]hen you choke, you stimulate
the vagal nerve and the cardiac arrest that occurs in patients with early repolarization
syndrome happens during times when they have high vagal tone. So high vagal tone
would be a situation where a cardiac arrest from early repolarization syndrome could
occur. And if he had choked, that would increase vagal tone.”
Based on the fact Bledsoe has, at this point, suffered multiple cardiac arrests, Dr.
Calkins disagreed with Dr. Shah’s opinion that his early repolarization syndrome is
benign. He also disagreed with Dr. Shah’s opinion that Bledsoe’s initial cardiac arrest
was caused by drinking Monster Energy. He explained that caffeine is generally safe for
human consumption in moderate amounts and that the medication prescribed to people
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with early repolarization syndrome operates to increase one’s QT interval, so if anything,
drinking caffeine would have helped or protected against a cardiac arrest. “And, in fact,
stimulants make [the syndrome] better. So studies have shown that if you give adrenaline
to someone with early repolarization syndrome, if they’re having crazy arrests like every
day, every hour, if you give them adrenaline, they quiet down and go away. To the degree
that the Monster Energy have some caffeine that’s a mild stimulant, you would expect
Monster Energy drink to help prevent an episode.”
d. Rebuttal of Bledsoe’s experts’ methodology
Dr. Dominik Alexander, a Ph.D. in epidemiology, performed an epidemiological
evaluation of whether Monster Energy could cause a cardiac arrest and, if so, whether it
did in this case. He told the jury that he was unable to find even a statistically significant
association between Monster Energy and cardiac arrests, let alone evidence of causation.
He explained that the three case reports Bledsoe’s experts discussed during their
testimony were not designed to evaluate the strength of an association between Monster
Energy and cardiovascular effects because none of them used a control or comparison
group. He said the reports could be useful for generating hypotheses, but lack
epidemiological value for demonstrating association or causation. “The bottom line is
[they’re] not an analytical epidemiologic investigation. [¶]. . . [¶] These are not studies
that provide information to evaluate risk.”
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E. Verdict and Bledsoe’s Motion for New Trial
The verdict form for this phase of the trial asked the jury to answer a single
question, “Was Monster Energy drink a substantial factor in causing [Bledsoe’s] harm?”
Shortly after retiring to deliberate, the jury returned a unanimous defense verdict.
Bledsoe filed a motion for new trial on the same two principal grounds he raises in
this appeal. The judge denied the motion, explaining she had made the challenged rulings
after spending a significant amount of time researching the issues and discussing them
with the parties. “I didn’t make those decisions lightly. I actually thought quite a lot on
them before I made them in the midst of trial. It wasn’t something I just did on a whim.”
Bledsoe filed a timely notice of appeal.
II
ANALYSIS
A. Bifurcation
Bledsoe argues the judge committed reversible error by bifurcating the issue of 1 causation. We disagree.
1 Though his notice of appeal says he’s appealing from a judgment after a jury trial, Bledsoe’s opening brief frames his appeal as a challenge of the judge’s order denying his motion for new trial (even though the brief challenges multiple rulings that were not the subject of his motion for new trial). “An order denying a motion for new trial is nonappealable,” though the order “may be reviewed on appeal from the underlying judgment.” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) As we construe Bledsoe’s arguments on appeal, he intends to challenge the rulings and orders the judge made during trial, not her denial of the motion for new trial. 23
A trial judge has broad case management discretion, which includes the authority
“to order separate trials of issues and determine the order in which those issues are to be
decided.” (Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 762
(Huff).) Code of Civil Procedure section 1048 authorizes a judge to “order a separate trial
of any cause of action . . . or of any separate issue or of any number of causes of action or
issues.” (Code Civ. Proc., § 1048, subd. (b).) The judge may bifurcate causes of action or
issues in a number of circumstances, including “when separate trials will be conducive to
expedition and economy.” (Ibid.)
Additionally, section 598 of the Code of Civil Procedure allows a judge to—on
their own motion and at any time—bifurcate any issue for trial “when the convenience of
witnesses, the ends of justice, or the economy and efficiency of handling the litigation
would be promoted.” This provision contemplates precisely what happened in this trial.
“Where trial of the issue of liability as to all causes of action precedes the trial of other
issues or parts thereof, and . . . the verdict of the jury upon such issue so tried is in favor
of any party on whom liability is sought to be imposed, judgment in favor of such party
shall thereupon be entered and no trial of other issues in the action as against such party
shall be had unless such judgment shall be reversed upon appeal or otherwise set aside or
[negligence]; CACI 1222 [negligent failure to warn]; CACI 1901 [fraudulent
concealment]; CACI 1231 [breach of implied warranty].)
43
Such instructions would have been improper because the only issue before the jury
in this phase of the trial was causation. The inclusion of instructions on product liability
concepts in the instructions or verdict form would have been confusing to the jury
because they hadn’t heard any evidence on those issues. In civil cases, “‘[a] party is
entitled upon request to correct, nonargumentative instructions on every theory of the
case advanced by him which is supported by substantial evidence.’” (Major v. Western
Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217, italics added.) Because the evidence
in this case was limited to causation, Bledsoe was not entitled to instructions on issues
that were not before the jury.
We also reject Bledsoe’s contention that the verdict form’s use of the term
“substantial factor” introduced a confusing new concept on the last day of trial and in so
doing “pushed jurors toward finding that new and ambiguous phrase unsatisfied by
Bledsoe.” The argument misrepresents the record. The term was neither new nor
undefined. Both parties used it throughout trial, starting with their opening statements,
and CACI No. 430 provided the jury with the following definition of the term: “A
substantial factor in causing harm is a factor that a reasonable person would consider to
have contributed to the harm. It must be more than a remote or trivial factor. It does not
have to be the only cause of the harm.” In his closing argument, Bledsoe’s counsel
highlighted this definition and discussed it at length, arguing, among other things, that
“there can be a lot of potential factors that cause the harm, and it doesn’t even have to be
more than 50 percent. It just has to be more than a trivial factor.” The claim the term was
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new and confusing for the jurors has no merit. As a final point, Bledsoe forfeited this
argument anyway by agreeing to the use of this verdict form. (E.g., Morgan v. Imperial
Irrigation Dist. (2014) 223 Cal.App.4th 892, 914 [failure to object or raise an argument
in the trial court forfeits the issue on appeal].)
3. Dr. Roberts’ testimony
As we’ve seen, Dr. Roberts presented his report on the ingredients in Monster
Energy to a panel of experts to reach their own conclusions about the ingredient’s safety.
During his direct examination, counsel for Monster walked him through three of the
ingredients—caffeine, taurine, and guarana—and asked for his conclusion as well as that
of the expert panel. By the time counsel reached the third ingredient, guarana, Bledsoe’s
counsel objected that it was hearsay for the witness to relay the panel’s conclusion to the
jury. The judge overruled the objection and Dr. Roberts responded that, as with caffeine
and taurine, the panel concluded guarana was safe.
Even if we assume this ruling was erroneous, it in no way prejudiced Bledsoe’s
case. For starters, Bledsoe didn’t object until counsel reached the third and final
ingredient in the list. By that time, the jury had already heard testimony that the panel had
found the level of caffeine (the most important ingredient from a cardiovascular
perspective) in Monster Energy was safe. But more importantly, over the 10 days of trial,
the jury heard compelling evidence of an alternate cause of Bledsoe’s injuries. This
evidence reduced any opinion about the safety of guarana, a low-caffeine herbal extract, a
relatively minor point in the trial.
45
4. Juror No. 9
After the close of evidence and after the judge denied Monster’s motions for
directed verdict and nonsuit, she informed the parties she had just received a letter from
Juror No. 9 asking to be relieved because she was suffering financial hardship. The juror
said she had a job interview during voir dire, was later offered the position, and needed to
start working soon. The judge told counsel she intended to wait until the jury returned a
verdict on this phase before deciding whether to relieve the juror. Bledsoe’s counsel said,
“That’s fine by us,” and declined the judge’s invitation to read the letter.
Bledsoe now complains the judge’s failure to relieve Juror No. 9 before
deliberations was error and prejudiced his case by “incentivizing a quick defense
verdict.” Considering Bledsoe agreed with the decision to wait until phase one was
complete, and considering the judge could not discharge the juror unless she concluded
the juror had shown an inability to perform her duty in an unbiased manner, we conclude
there was no error. (See Shanks v. Department of Transportation (2017) 9 Cal.App.5th
543, 550 [appellate court reviews a decision to discharge a juror under the “demonstrable
reality” standard, which is stricter standard than the substantial evidence standard, and
entails a review of “the entire record to determine if the trial court actually relied on
evidence that supported a conclusion that bias was established”].) Additionally, because
the verdict was unanimous, Bledsoe cannot show that the replacement of a single juror
was likely to make a difference in the outcome of the case. (Cal. Const., art. I, § 16 [in
civil cases, “three-fourths of the jury may render a verdict,” unanimity is not required].)
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III
DISPOSITION
We affirm the judgment. Bledsoe shall bear costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
CODRINGTON Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment, holding that the trial judge did not abuse her discretion by bifurcating the issue of causation or by limiting the scope of expert testimony, and that any alleged errors were not prejudicial given the strength of the evidence supporting an alternate cause of the plaintiff's injuries.
Issues
Did the trial court abuse its discretion by bifurcating the issue of causation?
Did the trial court abuse its role as a gatekeeper of expert testimony under Sargon?
Did the cumulative effect of the trial court's rulings result in prejudice to the plaintiff?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude the judge’s rulings were fair and reasonable and, in any event, Bledsoe cannot demonstrate prejudice given the strength of the evidence of an alternate cause of his cardiac arrest.”
“The judge ordered the issue of causation bifurcated and tried first.”