I.

FACTUAL AND PROCEDURAL BACKGROUND1

A. NuVasive and the NeuroVision Device

Included among NuVasive's spine surgery products is the NeuroVision device,

which is designed to sense the presence of nerve tissue during surgery, including when a

surgeon accesses the spine or places instrumentation in the spinal vertebrae. NuVasive

markets the NeuroVision device as, among other things, an aid to a specific type of spine

surgery where the surgeon accesses the spine from the patient's side, rather than from the

patient's back or front as is traditionally done. NuVasive has copyrighted and

trademarked the moniker "XLIF" (an acronym for "eXtreme Lateral Interbody Fusion")

for this type of surgery. A recognized risk of this procedure is injury to the nerves of the

psoas muscle, which the surgeon must pass through in order to access the spine from the

patient's side. NuVasive claims the NeuroVision device can assist the surgeon in

avoiding injury to these nerves during surgery. Tens of thousands of patients have

undergone surgery using the NeuroVision device.

NuVasive created two pamphlets about the NeuroVision device that NuVasive

encouraged surgeons to use in their consultations with patients (XLIF pamphlets).2 One

1 "As required by the rules of appellate procedure, we state the facts in the light most favorable to the judgment." (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.)

2 The XLIF pamphlets were distributed by a trade organization called the Society for Lateral Access Surgery (SOLAS), which NuVasive created and funded specifically to promote NuVasive's research and products associated with the XLIF technique. 3 pamphlet promises that the NeuroVision device "provides real-time, precise and reliable

feedback to ensure your nerve safety." The pamphlet further explains, "With the

minimally invasive XLIF® approach, and the safety afforded by this nerve monitoring

system, you can experience a faster recovery and a quicker return to your normal

lifestyle." A second pamphlet states, "Finally, you will be prepared for intraoperative

nerve monitoring — this will ensure safe approach to the spine." The NuVasive

marketing employee responsible for the above-quoted language — and whom NuVasive

designated as the person most knowledgeable about the SOLAS patient education

pamphlets — used the word "ensure" to mean "[t]o make sure."3 Despite that testimony,

the employee was unsure whether the NeuroVision device could actually "ensure . . .

nerve safety."

More importantly, despite these representations, NuVasive knew the NeuroVision

device could not guarantee nerve safety. For example, NuVasive had identified 28 ways

in which the NeuroVision device could return a "false negative" — i.e., by failing to raise

an alarm when it should have. NuVasive had received dozens of reports of false negative

readings on NeuroVision devices. Such false negative readings can lead to permanent

NuVasive acknowledges that the XLIF pamphlets "were published by NuVasive and designed to be provided to patients by surgeons"; and to order the XLIF pamphlets, the SOLAS materials provide a reference to "www.nuvasive.com" and encourage the reader to "contact your NuVasive® Sales Consultant."

3 The jury was instructed: " 'Ensure' " has been defined variously as: (1) "to make . . . sure"; (2) "to make safe, protect"; (3) "to make certain of or sure of; insure, or to make sure, certain, or safe; guarantee."

4 nerve damage. NuVasive was aware of at least one instance where a false negative

reading occurred and injury resulted. At trial, NuVasive's expert in the product

development of medical devices agreed that the "NeuroVision device cannot eliminate

the risk of false negatives."

B. NuVasive and Taylor's "Productive Cooperation"4

Beginning in 2003, NuVasive entered into a series of consulting and other

business arrangements with Taylor. Taylor helped NuVasive develop and test new

devices; educated surgeons on the XLIF procedure and the use of NuVasive products,

including the NeuroVision device; spoke at conferences, to the media, and to investors

about NuVasive and its devices; presented to the NuVasive board of directors; acted as

head of NuVasive's bone bank; appeared as a coinventor on a NuVasive patent

application; advised NuVasive's sales and marketing staff; and otherwise promoted

NuVasive's products in the medical community. NuVasive also consulted Taylor

regarding language in its patient pamphlets — including the XLIF pamphlets.

Taylor's work was key to NuVasive's success. In its form 10-K filing with the

Securities and Exchange Commission, in early 2008 NuVasive recognized that

4 "[P]roductive cooperation" is a phrase NuVasive uses to describe relationships between physicians and medical device companies. NuVasive describes the "learned intermediary doctrine" as a policy that insulates medical device manufacturers from liability for physicians' errors. NuVasive discusses the learned intermediary doctrine in various places in its opening brief, including citing a California Supreme Court opinion and attaching unpublished federal opinions that deal with the issue. Understandably, Kitrosser responded in her brief. In its reply brief, however, NuVasive assures us that it does not contend that the learned intermediary doctrine applies in this case. Thus, we express no opinion on the topic.

5 "recommendations and support of our products by influential surgeons are essential for

market acceptance and adoption [of NuVasive products]." For his efforts, Taylor

received stock, stock options, consulting fees, per diem payments, royalties, and other

compensation. By 2008, Taylor was receiving in excess of $220,000 per year in

payments from NuVasive, including almost $135,000 per year in royalties.5 In or around

September 2008, Taylor also held approximately $472,000 worth of NuVasive stock

options.

UCSD requires its employees who participate in clinical trials to submit a

disclosure form in order to identify potential conflicts of interest. The form, denominated

the 700-U, requires the employee to state under penalty of perjury whether the employee

is a consultant to the entity sponsoring the trial, whether the employee receives any

income from that entity and whether the employee has an ownership interest in the entity.

In 2006, NuVasive selected Taylor to be the principal investigator on a clinical

trial involving the NeuroVision device; and on his 700-U form, Taylor identified the prior

12 months' consulting income from NuVasive to be in the range of $10,001 to $100,000.

The UCSD committee tasked with reviewing 700-U forms approved Taylor's

participation in the trial on the express conditions that Taylor neither receive

compensation from NuVasive nor speak at NuVasive-sponsored events during the trial.

5 This $220,000 was in addition to — and an additional 40 percent of — what Taylor made at UCSD.

6 The clinical trial did not go forward, and Taylor continued receiving compensation from

NuVasive6 — which totaled more than $144,000 in 2006.

Two years later, in 2008, NuVasive selected Taylor to be the principal investigator

in another clinical trial related to the NeuroVision device. Taylor filled out the required

700-U form, but this time he did not disclose either his consulting relationship with

NuVasive or the income he had received from NuVasive. Taylor's 700-U form did not

lead to any further inquiry from UCSD, and this time UCSD allowed Taylor to be the

principal investigator without any conditions limiting his compensation from or contact

with NuVasive. Taylor's representations were false. At the time, as previously noted,

Taylor was receiving approximately $220,000 per year in compensation from NuVasive.

On two additional occasions, NuVasive selected Taylor to be the principal

investigator for other clinical trials. Taylor made the same false representations on his

700-U forms for those trials as well.

NuVasive also had its own conflict of interest forms for its investigators in its

clinical trials. These forms are required by the Food and Drug Administration (FDA) and

must be made available to the FDA upon request. On two such forms, Taylor falsely

claimed to have received no compensation from NuVasive and to have no equity interest

in NuVasive. According to NuVasive's executive vice president and general counsel,

NuVasive was responsible for checking the accuracy of Taylor's disclosures.

6 Taylor could not remember why this clinical trial did not proceed.

7 When Taylor's false statements on UCSD's 700-U forms came to light during this

litigation, Kitrosser's counsel reported Taylor to the Fair Political Practices Commission

(FPPC), which enforces compliance with the disclosure obligations in the 700-U forms.

Taylor and the FPPC entered into a stipulation, decision and order (FPPC Decision);

Taylor had violated California law by making false statements on his 700-U forms, and

he was required to pay a $12,000 fine. As part of the exhibit in support of the stipulation,

one of the expressly listed aggravating factors was that NuVasive "benefited by being

able to utilize research conducted under the auspices of the University of California in the

development and promotion of their own medical research projects and products." Even

after NuVasive became aware of Taylor's false statements, the FPPC's findings and the

fine, NuVasive did nothing to reprimand Taylor or otherwise alter its relationship with

Taylor.

C. Kitrosser and the Surgery

Kitrosser had undergone spine surgery (a discectomy) in 1993, and although it was

successful, she reinjured her back in 1997, requiring her to retire from teaching in her

50's. For the next 10 years, she experienced various levels of pain, during which time she

consulted a number of back surgeons with whom she discussed the possibility of surgery.

She consistently avoided further surgery, however, because she "was scared to death of

any kind of . . . open back surgery." In particular, Kitrosser did not want her spine to be

operated on from the back, and she did not want any screws or other instrumentation

placed in her spine.

8 In 2007, at a time Kitrosser was suffering from chronic back, leg, neck and arm

pain that affected her mobility, one of her physicians referred her to Taylor for possible

spine surgery. According to Taylor's notes, at this first visit in August 2007, Kistrosser's

medical condition included scoliosis and lumbar stenosis with pain at an " '8 out of 10.' "

Kitrosser's condition worsened, and she had follow-up visits with Taylor in November

2007 and February 2008 and two in March 2008.

Kitrosser remembered the March 21, 2008 visit very well, because Taylor

explained the benefits of XLIF surgery and its side approach to the spine. Kitrosser

understood the surgery would be a "minimally invasive procedure" in which "there would

be no cutting of my back, which is what I wanted to hear, and no instrumentation. No

screws put in my back." Taylor also promoted "a new kind of device with which he

could monitor my nerves, nerve safety for the entirety of the procedure. [¶] He said it

would remove any risk of nerve injury. It would be safe." When asked "exactly" what

Taylor said, Kitrosser testified, "he guaranteed the safety of my nerves. He was using a

device now that's a monitor that guarantees the safety of my nerves."7 This procedure —

in particular the monitoring and safety of the nerves — was "[c]ompletely" different from

the back surgery Kitrosser had undergone more than 10 years earlier. Taylor's written

7 Kitrosser testified that Taylor had told her that death, bleeding or infection could result from the surgery. At trial, Taylor denied telling Kitrosser that the surgery would be successful, that the NeuroVision device would guarantee her nerves would be safe and that he would not use screws or other instrumentation in the surgery. He did acknowledge, however, that he may have told Kitrosser the NeuroVision device would "help ensure" the safety of her nerves.

9 report recommended a three-level spinal fusion "at L2-3, 3-4, and 4-5 XLIF without

posterior instrumentation."

Following these consultations, as of March 2008 Kitrosser was still unsure

whether to proceed with the surgery. Desiring more information, Kitrosser called

Taylor's office several times. Eventually, with Taylor's approval, his clinical coordinator

— his assistant responsible for patient contact and scheduling surgeries, tests and

appointments — sent Kitrosser the two NuVasive XLIF pamphlets.

A NuVasive salesperson had told Taylor that the XLIF pamphlets could be used to

provide patients with more information about the XLIF procedure and NuVasive's nerve

monitoring devices. Indeed, NuVasive and SOLAS (the NuVasive-sponsored

professional society) encouraged surgeons to use the XLIF pamphlets by, among other

things, customizing the XLIF pamphlets with the surgeon's name and contact

information. The XLIF pamphlets Taylor's office sent Kitrosser were customized for

Taylor, who paid for the opportunity to have his name and contact information on the

XLIF pamphlets he distributed.

The XLIF pamphlets confirmed exactly what Taylor had told Kitrosser during

their consultations — including specifically that the NeuroVision device would "ensure

nerve safety" and "ensure [a] safe approach to the spine."8 Protecting her nerves from

damage was "very important" to Kitrosser. Following her receipt and review of the XLIF

8 In fact, given the information communicated in the XLIF pamphlets with Taylor's name and contact information, Kitrosser thought that Taylor had written the pamphlets.

10 pamphlets, Kitrosser decided to undergo the surgery, testifying that she would not have

agreed to surgery if she had known the NeuroVision device could give false information

or otherwise create a risk of nerve injury.

During the September 2008 surgery, Taylor used the XLIF technique with the

NeuroVision device to complete the three-level spinal fusion. More specifically, after

accessing the spine and determining the extent of Kitrosser's disc degeneration, Taylor

fused the affected vertebrae using screws guided by the NeuroVision device. The

NeuroVision device did not indicate any problems, including the presence of nerves.

Following surgery, Kitrosser's condition worsened. Her pain dramatically

increased, and she had greater difficulty walking and performing daily activities than

before the procedure. Later tests revealed that one of the screws Taylor placed in

Kitrosser's spine had breached her spinal canal, impinging on a nerve root. Thus,

according to one of Kitrosser's experts, by failing to raise an alarm, the NeuroVision

device gave a false negative while (and after) placing the screws.

D. The Trial Court Proceedings

In October 2009, as a result of the surgery Kitrosser filed suit against Taylor, his

physician's assistant, and the Regents of the University of California, alleging a number

of claims in seven causes of action. Eleven months later, Kitrosser filed a separate

lawsuit against NuVasive, alleging a number of claims in nine causes of action related to

the surgery. In early 2011, the court consolidated the two lawsuits. Shortly before trial,

11 Kitrosser settled her claims against Taylor and the Regents of the University of California

for $1.75 million.9

During the February-April 2013 time period, the court presided over a jury trial at

which Kitrosser proceeded against NuVasive on causes of action for intentional

misrepresentation, negligence per se, and breach of express warranty. Kitrosser pursued

two separate claims of intentional misrepresentation against NuVasive: (1) liability for

its intentional misrepresentations to Kitrosser about the NeuroVision device in the XLIF

pamphlets; and (2) liability, on a theory of civil conspiracy, for Taylor's intentional

misrepresentations to Kitrosser. Kitrosser called numerous current and former NuVasive

employees to testify regarding the NeuroVision device, the preparation of NuVasive's

XLIF pamphlets, and NuVasive's relationship with Taylor. Taylor testified regarding his

work for NuVasive, the 700-U forms he submitted to UCSD, the subsequent FPPC

Decision, and his treatment of and surgery on Kitrosser. Kitrosser testified regarding her

consultations with Taylor, her review of the pamphlets, and her physical condition before

and after Taylor's surgery. Numerous other lay and expert witnesses testified.

NuVasive's principal defenses were: the XLIF pamphlets were not false or misleading;

Taylor did not make false or misleading statements to Kitrosser; if Taylor did make such

statements, NuVasive did not agree or intend for him to do so; and Kitrosser's injuries

were overstated.

9 The parties do not tell us what happened to Taylor's physician's assistant.

12 After three weeks of deliberations, in a special verdict, the jury found in favor of

Kitrosser on her claim of intentional misrepresentation on the theory of conspiracy. The

jury found that Taylor intentionally or recklessly made false and misleading statements,

Kitrosser relied on those statements, Taylor's statements were a substantial factor in

causing Kitrosser's harm, and NuVasive agreed and intended that Taylor made such

statements. On Kitrosser's claim for intentional misrepresentation based on NuVasive's

own statements, the jury found that, although NuVasive intentionally or recklessly made

false and misleading statements and that Kitrosser relied on those statements, NuVasive's

statements were not a substantial factor in causing Kitrosser's injuries. Similarly, on

Kitrosser's cause of action for breach of express warranty, the jury found although

NuVasive had breached an express warranty, the breach was not a substantial factor in

causing Kitrosser's injuries. Finally, the jury was unable to reach a verdict on Kitrosser's

cause of action for negligence per se.10 The jury awarded Kitrosser approximately

$3.1 million in damages, which the court later reduced to approximately $2.6 million

based on various offsets. NuVasive filed motions for a new trial and for JNOV, which

the court denied in early October 2013. As relevant to the issues on appeal, the basis of

NuVasive's motion for JNOV was that because the jury did not expressly find that Taylor

made the misrepresentation that was the object of the conspiracy — namely, false

10 Kitrosser later dismissed without prejudice the sixth cause of action for negligence per se.

13 representations about the NeuroVision device — the special verdict does not contain an

essential element of Kitrosser's conspiracy claim.

The court filed an amended judgment on October 18, 2013, and NuVasive timely

appealed.

II.

DISCUSSION

On appeal, NuVasive presents three independent arguments: (1) the record does

not contain substantial evidence to support the jury's finding of conspiracy; (2) the special

verdict returned by the jury is fatally defective, because it omits a factual finding

necessary to support Kitrosser's claim of intentional misrepresentation by conspiracy; and

(3) the trial court erred in admitting evidence relating to Taylor's false statements on his

700-U forms and to the resulting FPPC Decision.

A. Substantial Evidence Supports the Finding of Conspiracy

NuVasive contends that the record lacks substantial evidence to support the jury's

finding of a conspiracy. We disagree.

1. Law

In Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503

(Applied Equipment), our Supreme Court summarized:

"Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as her or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way,

14 a coconspirator incurs tort liability co-equal with the immediate tortfeasors." (Id. at pp. 510-511.)

"Hence, where the complaint charges a conspiracy and the commission of a wrongful act,

the only significance of the conspiracy charge is that each member may be held

responsible as a joint tortfeasor, regardless of whether that member directly participated

in the act." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 45, p. 111 [and

collected cases]; id. (2014 Supp.) § 45, p. 18.)

To prove a claim for civil conspiracy, a plaintiff must "provide substantial

evidence of three elements: (1) the formation and operation of the conspiracy,

(2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the

wrongful conduct." (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571,

1581 (Kidron); see Applied Equipment, supra, 7 Cal.4th at p. 511.) "Accordingly, '[t]he

basis of a civil conspiracy is the formation of a group of two or more persons who have

agreed to a common plan or design to commit a tortious act.' [Citations.] . . . The

conspiring defendants must also have actual knowledge that a tort is planned and concur

in the tortious scheme with knowledge of its unlawful purpose." (Kidron, at p. 1582; see

Harris v. Capitol Records Distributing Corp. (1966) 64 Cal.2d 454, 462 [to be a

conspirator, "one must share a common purpose with another"].) "Unless there is such a

meeting of the minds, ' "the independent acts of two or more wrongdoers do not amount

to a conspiracy." ' " (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.)

Because direct evidence of a conspiracy is often lacking, "the requisite

concurrence and knowledge ' " 'may be inferred from the nature of the acts done, the

15 relation of the parties, the interests of the alleged conspirators, and other

circumstances.' " ' " (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785; see

Holder v. Home Sav. & Loan Assn. (1968) 267 Cal.App.2d 91, 108 (Holder); Biggs v.

Tourtas (1949) 92 Cal.App.2d 316, 322 [since "it is next to impossible to secure direct

evidence of a conspiracy, . . . the proof must usually be inferential and circumstantial"].)

For this reason, "[t]acit consent as well as express approval will suffice to hold a person

liable as a coconspirator." (Wyatt, at p. 785.)

2. Standard of Review

Our consideration whether the verdict is supported by substantial evidence is

governed by the well-established standard of review applicable to any claim that a

judgment or finding is not supported by the evidence in the record:

"In reviewing the evidence on such an appeal, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.)

We "look to the entire record [of the appeal]"; and if there is such substantial

evidence, "it is of no consequence that the [jury] believing other evidence, or drawing

other reasonable inferences, might have reached a contrary conclusion." (Bowers v.

Bernards (1984) 150 Cal.App.3d 870, 873, 874, italics omitted (Bowers); see Johnstone

v. Morris (1930) 210 Cal. 580, 590 ["The jury may infer the conspiracy from all the

16 circumstances, and if the inference is a reasonable one, it will not be disturbed on

appeal."]; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864,

872 (Toyota Motor Sales) ["Where conflicting inferences may reasonably be drawn, the

determination of the [jury] will be accepted on appeal even though a contrary

determination would likewise be upheld."].)

Quoting from Peterson v. Cruickshank (1956) 144 Cal.App.2d 148, NuVasive

suggests that, with regard to evidence of a conspiracy, " 'if there be two inferences

equally reasonable and equally susceptible of being drawn from the proved facts, the one

favoring fair dealing and the other favoring corrupt practice, it is the express duty of the

court or jury to draw the inference favorable to fair dealing.' " (Id. at p. 164.) However,

this is a standard applied by the trier of fact in the first instance, not by the appellate court

on review. (See id. at pp. 165-168; Toyota Motor Sales, supra, 220 Cal.App.3d at

p. 872.) On appeal, "the test is not the presence or absence of a substantial conflict in the

evidence. Rather, it is simply whether there is substantial evidence in favor of the

respondent. If this 'substantial' evidence is present, no matter how slight it may appear in

comparison with the contradictory evidence, the judgment must be upheld." (Howard v.

Owens Corning (1999) 72 Cal.App.4th 621, 631.) The fact that the record may contain

substantial evidence in support of an appellant's claims is irrelevant to our role, which is

limited to determination of the sufficiency of the evidence in support of the judgment

actually made. (Ibid.) NuVasive's contention that "a reasonable alternative inference

exists" — namely, one that supports fair dealing — is, therefore, irrelevant.

17 In determining the sufficiency of the evidence, we "may not weigh the evidence or

consider the credibility of witnesses. Instead, the evidence most favorable to [the

respondent] must be accepted as true and conflicting evidence must be disregarded."

(Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) The testimony of a

single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975)

14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor

of an appellant does not establish the fact for which the evidence was submitted

(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890). "[T]he focus is on the

quality, not the quantity of the evidence." (Toyota Motor Sales, supra, 220 Cal.App.3d at

p. 871.)

3. Analysis

In arguing that the record lacks substantial evidence of a conspiracy, NuVasive's

principal contention is that, because "there was no basis for liability arising from

NuVasive's direct conduct," there necessarily was insufficient evidence of a conspiracy

between NuVasive and Taylor to misrepresent the NeuroVision device in order to induce

Kitrosser to consent to the XLIF procedure.11 To this end, NuVasive relies on evidence

and inferences that suggest its association with Taylor was a productive business

11 Even though the jury did not find NuVasive liable to Kitrosser for fraud, the jury did find that NuVasive made false representations of material fact to Kitrosser; that NuVasive knew the representations were false (or made the representations recklessly and without regard for the truth); that NuVasive intended Kitrosser to rely on the misrepresentations; and that Kitrosser reasonably relied on NuVasive's misrepresentations.

18 relationship between a medical device manufacturer (that deals with doctors) and a

physician who uses the company's products (and deals with patients). However, that is

not our focus; rather, we are concerned with whether there is evidence — and inferences

from evidence — of a conspiracy, not whether there may be evidence to support a

different relationship. (Bowers, supra, 150 Cal.App.3d at p. 874 ; Toyota Motor Sales,

supra, 220 Cal.App.3d at p. 871.) As we explain, we are satisfied that the record contains

substantial evidence to support the jury's verdict on conspiracy.

To begin, Kitrosser presented evidence that the association between NuVasive and

Taylor was not, as suggested by NuVasive, an ordinary business relationship between a

medical device manufacturer and a physician who uses the company's devices. Taylor

was a well-compensated consultant to and advocate for NuVasive; he benefited

significantly from NuVasive's successes, including royalties from NuVasive's sales of its

NeuroVision device and other products. NuVasive's president of global products and

services considered Taylor "key to making NuVasive great" — for which Taylor was

well-compensated. For example, in the two years preceding Kitrosser's surgery,

2006-2007, NuVasive paid Taylor more than $341,000 ($90,000 in fees, $217,910 in

royalties and $33,691 in "other payments"); in the year of Kitrosser's surgery, 2008,

NuVasive paid Taylor more than $220,000 ($40,000 in fees, $134,577 in royalties and

$46,000 in "other payments"); and over the years, NuVasive gave Taylor stock options

for 25,000 shares of the company, which at the time of Kitrosser's surgery had a value of

19 approximately $472,000.12 Taylor acknowledged that the more products NuVasive sold

(which were subject to his royalty agreements), the more he benefited financially. In

addition, NuVasive sponsored clinical studies to convince surgeons to use NuVasive

products and techniques — studies for which NuVasive hired (and compensated) Taylor

as the principal investigator. Also, Taylor worked with the NuVasive sales group,

providing direct input as to how to sell NuVasive products to surgeons. Taylor was on

the board of directors and chaired the surgeon training committee of SOLAS, the trade

organization that NuVasive created and funded specifically to promote NuVasive's

research and products associated with the XLIF technique. NuVasive prepared specific

points for Taylor to discuss with potential underwriters; and at NuVasive's request,

Taylor personally met with NuVasive's financial analysts to answer their questions about

NuVasive's products.

In 2006, as part of UCSD's formal policy requiring applicant disclosures and

university approval for UCSD doctors who want to serve as principal investigators in

clinical studies, UCSD warned Taylor he could not "engage in any recompensed activity

with [NuVasive] during the course of [a NuVasive] study" for which he was to be the

principal investigator. NuVasive and Taylor did not proceed with this study. In 2008,

during the same process for a NuVasive study regarding use of the NeuroVision device

12 In his deposition, the video of which was played for the jury, Taylor could not recall any services he provided in exchange for the annual payments of at least $40,000 in fees. From this, the jury could infer NuVasive was paying Taylor to persuade patients to use the XLIF technique and, accordingly, the NeuroVision device.

20 during the XLIF procedure, Taylor falsely answered the required financial disclosure

form by failing to disclose his consulting relationship with and considerable income and

travel expenses from NuVasive. Likewise, Taylor failed to provide accurate information

about his income from and ownership interest in NuVasive on the financial disclosure

form required by NuVasive for all potential clinical investigators. Accordingly, this

study proceeded. Taylor failed to provide the same information on disclosure forms for

clinical investigations on behalf of NuVasive in March and June of 2009. Once

NuVasive learned of Taylor's false financial disclosures, it took no action, even though

(according to NuVasive's executive vice president and general counsel) NuVasive had an

obligation to determine the accuracy of the disclosures and Taylor's conduct was not

acceptable to NuVasive. From this, the jury could infer NuVasive and Taylor would do

whatever was necessary for Taylor, under the auspices of UCSD, to serve as NuVasive's

clinical investigator for the NeuroVision device.

From the foregoing, substantial evidence of a common purpose exists — namely,

to convince patients (like Kitrosser) to undergo a surgical procedure that involved the use

of a NeuroVision device from which both NuVasive and Taylor could profit. As the

following evidence substantiates, the mechanism or vehicle to effect this common

purpose was the misrepresentation regarding the NeuroVision device — namely, with the

NeuroVision device, nerve safety would be "ensured."

First, according to Kitrosser, Taylor expressly told her that "with his

[NeuroVision] monitoring device, there would be no risk of nerve damage, nerve safety

was ensured." (Italics added.) This was in contrast to her prior back surgery in 1993

21 when, according to Kitrosser, "there was no device that would guarantee or ensure the

safety of your nerves." Indeed, Taylor conceded that he "might have said" to Kitrosser

that the NeuroVision device would " 'help ensure' " her nerve safety. (Italics added.)

NuVasive communicated the same misrepresentation in the two XLIF pamphlets

that it prepared — with the express purpose and understanding that they would be

provided to patients like Kitrosser. Consistently, NuVasive prepared and distributed to

surgeons like Taylor a brochure instructing them how best to use and distribute the XLIF

pamphlets to their prospective spine surgery patients. A NuVasive salesperson

personally explained to Taylor why he should use them and how he could customize them

with his name and contact information.13

In 2008 in response to Kitrosser's inquiry, Taylor sent Kitrosser the two XLIF

pamphlets — each customized with Taylor's name and contact information. One XLIF

pamphlet provides in part: "During spine surgery it is important to protect the nerves

associated with your spinal column. . . . The NeuroVision Nerve Monitoring System

provides real-time, precise and reliable feedback to ensure your nerve safety." (Italics

added.) Kitrosser was impressed by this language in the XLIF pamphlet because,

according to her, "it was exactly what he told me."14 The second XLIF pamphlet —

13 Following this oral and written advice from NuVasive, between June 2007 and October 2008, Taylor ordered — and paid to have customized — more than 1,000 XLIF pamphlets.

14 This first pamphlet also represents that the "NeuroVision System has been used successfully in over 60,000 spinal surgeries," which "reinforced everything that [Taylor] said." However, NuVasive's director of marketing admitted that the "60,000" figure 22 which begins with a one-page letter that opens with "Dear valued patient" and closes with

Taylor's name and contact information — provides in part under a description of what to

expect: "Finally you will be prepared for intraoperative nerve monitoring — this will

ensure safe approach to the spine." (Italics added.) Kitrosser confirmed that

"[e]nsur[ing] safe approach to the spine" was consistent with what Taylor had told her.15

Significantly, NuVasive's XLIF brand manager, who was also SOLAS's support manager

during the 2006-2008 time period — and, during discovery, the person NuVasive

designated as most knowledgeable regarding the SOLAS customized patient education

brochures, including the drafting of the XLIF pamphlets at issue — testified that Taylor

was "probabl[y] . . . one of the surgeons that I did communicate with to review the

language in the materials, sure."

Both Taylor and NuVasive knew that their representations about the NeuroVision

device were untrue. In a portion of Taylor's videotaped deposition shown to the jury,

Taylor admitted he could not "ensure a hundred percent of anything in surgery."

Likewise, since at least 2005 — when NuVasive submitted a "risk analysis" to the FDA,

represented only NuVasive's sales of the disposable kits used in the XLIF surgeries and that "[t]here is no assurance" the surgeries in fact were "successful." NuVasive's marketing strategy, however, was successful: Kitrosser read and believed that the XLIF procedure had been "very successful" in "many, many, many surgeries, 60,000."

15 This second pamphlet also contains information regarding the human spine, describes in much greater detail the XLIF procedure and compares its benefits to other procedures. In going over much of what NuVasive wrote, Kitrosser again testified that the information in this pamphlet "was exactly what [Taylor] told me," thereby reinforcing everything Taylor had told her in person.

23 disclosing 28 different ways that the NeuroVision device can give false information to

the surgeon, potentially resulting in permanent nerve injury — NuVasive has known it

cannot "ensure" nerve safety. Indeed, NuVasive's president of global products and

services and NuVasive's director of marketing both testified that the NeuroVision device

could not "guarantee" safety during surgery; and NuVasive's own expert on medical

device product development agreed that any representation that the NeuroVision device

can eliminate the risk of a failure to detect nerves during surgery "would be false."

In sum, we have little difficulty concluding that inferences from the direct

evidence support the finding that NuVasive and Taylor conspired to misrepresent the

ability of NuVasive's NeuroVision device to ensure Kitrosser's nerve safety during the

XLIF procedure.

NuVasive contends that, because it was not aware of Kitrosser specifically or of

her consultation with Taylor, NuVasive cannot be found to be a coconspirator with

Taylor. However, NuVasive's intent, agreement and awareness that Taylor misrepresent

the NeuroVision device to patients generally includes Kitrosser specifically. NuVasive

and Taylor communicated the same misrepresentation — NuVasive in written pamphlets

and Taylor in oral consultations — and the fact that NuVasive encouraged Taylor to use

the XLIF pamphlets in his consultations with patients like Kitrosser supports the

inference that NuVasive intended that he communicate the misrepresentation to

Kitrosser. NuVasive's reliance on Holder, supra, 267 Cal.App.2d 91, in support of its

position is misplaced. In Holder, the defendant bank did not conspire with the realtors,

because the bank officers merely passed on information provided by the realtors without

24 the intent to misrepresent the information the officers communicated to the plaintiffs.

(Holder, at p. 108.) In contrast, here NuVasive consulted with Taylor regarding the

language in the XLIF pamphlets, and NuVasive (in writing) and Taylor (orally) made the

same representations and knew the other was doing so also. To the extent NuVasive is

arguing that there is no evidence establishing that it knew what Taylor may have been

telling Kitrosser and, accordingly, Taylor made independent representations to Kitrosser,

NuVasive fails to credit the jury with inferring — especially given the circumstances

surrounding the preparation and distribution of the XLIF pamphlets — more than mere

coincidence in the identical oral and written misrepresentations made by Taylor and

NuVasive, respectively.

NuVasive suggests that, because the jury found the written misrepresentations in

the XLIF pamphlets were not a substantial factor in causing Kitrosser's harm, NuVasive

is somehow insulated from a finding of a conspiracy with Taylor. However, the finding

of lack of causation on direct liability for NuVasive's alleged fraud is irrelevant to the

determination whether Taylor and NuVasive formed a conspiracy (by which NuVasive is

jointly liable for the fraud of its coconspirator Taylor). At best, the finding supports an

argument that the coconspirators cannot be found liable for the misrepresentations made

by NuVasive; but the finding has no effect on whether a conspiracy existed between

NuVasive and Taylor and, accordingly, whether NuVasive can be found liable for the

misrepresentations made by Taylor. (See 5 Witkin, supra, Torts, § 45, p. 111 [once there

is a finding of a conspiracy, "each member may be held responsible as a joint tortfeasor,

regardless of whether that member directly participated in the act"].)

25 In its reply, NuVasive argues that, because there is no "plausible motive" for

NuVasive to conspire with Taylor, any inference of a conspiracy is not reasonable. By

not raising this argument in its opening brief, NuVasive has forfeited this argument.

(Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 (Doe)

[" ' "Obvious considerations of fairness in argument demand that the appellant present all

of his points in the opening brief. To withhold a point until the closing brief would

deprive the respondent of his opportunity to answer it or require the effort and delay of an

additional brief by permission." ' "].) In any event, even without input from Kitrosser, the

response is simple and straightforward: NuVasive's "plausible motive" was continued

business and financial gain. NuVasive and Taylor both benefited from the use of the

NeuroVision device in surgeries, like Kitrosser's, because its continued use and success

meant more sales of the device — with increased direct income to NuVasive and

increased royalties (and equity interest in NuVasive) to Taylor — and more "successful"

surgeries, as NuVasive boasted in one of its XLIF pamphlets. Relying on Matsushita

Electric Industrial Co. v. Zenith Radio Corp. (1986) 475 U.S. 574, 588, NuVasive

suggests that because the conspiracy here was " 'economically irrational and practically

infeasible,' " there is no substantial evidence to support the finding of a conspiracy.

However, the language NuVasive quotes means only that a conspiracy must not be

inferred where the defendant "had no motive to engage in the alleged . . . conspiracy"

(ibid.); and, as we just explained, the evidence and inferences from the evidence are

sufficient to substantiate that both NuVasive and Taylor had a significant motive here.

26 Substantial evidence supports the jury's finding of a conspiracy.16

B. The Special Verdict Is Not Fatally Defective

1. The Special Verdict Form Is Not Missing a Necessary Finding

NuVasive contends that, because the special verdict does not contain a specific

finding that Taylor misrepresented the NeuroVision device, the verdict is fatally

defective, and the order denying the motion for judgment JNOV must be reversed. We

disagree.

NuVasive and Kitrosser stipulated to the use of a special verdict form that was

given to the jury.

The special verdict form is divided into five parts: Part 1: intentional

misrepresentation by NuVasive; Part 2: intentional misrepresentation by [Taylor]

pursuant to a conspiracy with NuVasive; Part 3: negligence per se; Part 4: breach of

express warranty; and Part 5: damages. (Italics added.) At issue in this appeal is Part 2,

which provides as follows:

"Part 2: Intentional Misrepresentation by William Taylor, M.D. Pursuant to a Conspiracy with NuVasive

"1. Did William Taylor, M.D. make any false representation(s) of one or more important facts to Brenda Kitrosser?

__ͯ__ Yes ____ No