A former San Diego track star is speaking out after a jury awarded her more than $12 million in compensatory and punitive damages.
Whitney Engler sued a San Diego medical device company, Breg International and her doctor, Dr. David Chao, after she says her leg was disfigured after knee surgery in 2003. Chao is also the lead doctor for the San Diego Chargers.
The jury found Chao liable for negligence and fraud and decided Whitney Engler should receive $7 million in punitive damages from Breg International and $500,000 from Chao, meaning the bulk of the punitive damages would be Breg’s responsibility. Last week, that same jury awarded Engler $5.2 million in compensatory damages.
"There was worry that I could lose my leg and that was the complication and we still had no idea it was related to the polar care unit," Engler told NBC 7 Investigates in an exclusive interview.
Engler sued after she discovered that Dr. Chao's company, Oasis, was making money by renting out Polar Care 500 devices to his patients, something Oasis no longer does. She says she was also angry when she learned Dr. Chao had settled a case in 2002 with a Sea World performer. Jeff Warner accused Chao of prescribing the same Polar Care device which caused frostbite on his leg and left him unable to continue his performances.
"I asked him specifically if he knew what could have caused this and he said, 'I don't know, I've never seen anything like this before,'" Engler told NBC 7.
The jury found Dr. Chao 50 percent responsible, Breg International was listed as 40 percent responsible and Chao's company, Oasis, was found 10 percent responsible. The jury also decided Breg was negligent in its design of the device after hearing testimony that the cold therapy device can numb a patient's skin to the point that they can't feel frostbite setting in.
Engler says she spent an entire summer with an open would and hoping that, in time, her skin would regenerate. She says she had several reconstructive surgeries and will need more.
Robert Frank, Dr. Chao's attorney told NBC 7 that this is a product liability case and pointed out that Engler was able to return to full function of her knee.
"Dr. Chao used the Breg Polar Care device as recommended and exactly like thousands of other doctors nationwide. This verdict does not in any way reflect an adverse finding about Dr. Chao's ability to continue providing high quality surgical skills to the athletes and patients upon whom he operates,” Frank said.
Breg International declined an interview, but spokesperson, Kelly Neagu, emailed us this statement:
"We cannot comment on the specifics of this case; however, we can share that cold therapy devices have a strong and consistent track record of safely and effectively helping millions of people treat their injuries. Like all medical treatment options, it is important that cold therapy devices are used in accordance with instructions from the physician and manufacturer’s label to ensure safe and effective results.”
Engler and her attorney, Mark Stern, believe that this verdict should send a message to the FDA, which is the agency in charge of monitoring the safety of these devices.
“I think it’s a little sad that a jury had to address this and the regulatory agencies have not taken action…until now. Hopefully, that’s going to change,” Stern said.
NBC 7 contacted the FDA several times about this story and the agency declined to comment, stating that Engler’s case is not an FDA case. That’s despite the fact, that NBC 7 Investigates found complaints against Breg and cold therapy devices on its own website.
There are also more than 200 lawsuits filed in San Diego county against Breg International.