Attorney Search
Advocacy at a Higher Level

Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

Our firm history, honors and awards, and locations speak to our collaborative approach and commitment to serving clients as well as the outstanding legal resources we bring to bear.


View Opinion View Opinion

Horvitz & Levy LLP successfully represented defendant ConMed Corporation (ConMed), a global medical technology company, on appeal from a judgment in a products liability/medical malpractice case.

Plaintiff Andrew Garcia suffered injuries during a tonsillectomy. While his surgeon was using an electrocautery device to remove one of his tonsils, an endotracheal tube ignited in Garcia’s throat. Garcia sued his surgeon for medical malpractice. He also asserted a products liability claim against ConMed, which manufactured the generator that powered the electrocautery device. After a six-week trial, the jury returned a verdict against the surgeon and awarded Garcia approximately $750,000. The jury returned a defense verdict for ConMed.

Garcia settled with the surgeon but appealed the judgment in favor of ConMed. On appeal, Garcia argued that the judgment should be reversed because ConMed’s trial lawyer committed prejudicial misconduct during her closing argument. Garcia complained that ConMed’s trial lawyer told the jury that (1) ConMed was sued only because it has “deep pockets”; (2) this case has “consequences to all of us,” including the jurors; and (3) a verdict for ConMed would “send a message” to Garcia’s family to help Garcia overcome his learning disability. In response, ConMed argued that these comments did not constitute misconduct, and even if they did, the judgment should be affirmed because the comments were not prejudicial.

In a published opinion, the Court of Appeal, Sixth Appellate District, affirmed the judgment. The court concluded that the comments were improper but not prejudicial. The court explained that the comments were fleeting, ample evidence supported the jury’s finding that ConMed was not liable, and there was no indication that the jury did not follow the trial court’s admonition to disregard the comments. The California Supreme Court denied Garcia’s subsequent petition for review.