A jury Friday awarded $800,000 in damages to former spa worker Jaime Herwehe after finding that Dr. Nadine Haddad and her B Medical Spa & Wellness Center were guilty of medical negligence and medical battery.
But the nine-man, three-woman jury balked at Herwehe’s claim that she was fired in retaliation for not signing a consent form for the O-Shot procedure.
That procedure — clitoral and vaginal shots with her own blood platelets — had caused excruciating pain and loss of sexual function, she said.
By a 10-2 vote after nearly two days of deliberations, the jury also found no malice, oppression or fraud in Haddad’s actions. Meaning Herwehe (HER-way) isn’t eligible for punitive damages.
The presiding juror, a woman perhaps in her 30s, declined to speak to a reporter afterward. Neither did four or five others, who willingly briefed attorneys in the hallway outside Judge Carolyn Caietti’s fifth-floor courtroom in the downtown Hall of Justice.
But in a phone interview, a 55-year-old juror named Michael — whose last name is being withheld at his request — shared reasons for granting emotional pain and mental suffering damages far less than the $25 million sought by Herwehe’s legal team.
A licensed clinical counselor and therapist, Michael said he had problems with Herwehe’s team not putting a doctor on the stand to testify about examining her.
“If they had had a therapist … that said she was being treated for all the anxiety or PTSD because of that — or if they they had a doctor that examined her and said yes she has numbness and sensitivity … the award would have been a lot greater,” said the Carmel Valley resident.
Late Friday night, one of four alternate jurors allowed only to observe the deliberations told Times of San Diego that the verdicts were rushed — with no testimony read back as sought by at least three jurors.
Mary Beth Bilder, a 30-year-old Mission Valley resident, also said judge’s instructions were violated.
“There was much talk of doing things ‘in the interest of time,’ and when jurors asked for testimony to be read back, [three] other jurors protested that it would ‘take a lot of time’ to do so,” she wrote.
The rush, she said, was because one female juror needed to be in Mexico for a wedding.
“I was extraordinarily disappointed in this jury’s inability to deliberate in an unbiased way,” said Bilder, a hospital IT worker. “This jury was motivated by time, and time alone.”
The verdict would have been more favorable to Herwehe had jurors not felt “forced to vote when not ready or forced to move forward without being read back a single piece of testimony,” she said.
She said she complained to the bailiff. (Later, she said she told one of Herwehe’s lawyers about the rushed process.)
But the bailiff told her that, as an alternate, she couldn’t pose a question to the court.
“I was told that I was not allowed to voice my concern,” she said.
Bilder said she expected the weighing of damages to be very extensive “and it was not.”
“The conversation started with: ‘What would you be comfortable with giving Miss Herwehe … as a total amount?’ and the whole conversation was centered around what would be [the] total,” she said in a brief phone chat.
And then — contrary to the Superior Court judge’s instructions to allocate past and future damages separately — “they worked backwards from an acceptable total to past and future” figures in one chat.
How did the $800,000 get split into $750,000 (for past noneconomic harms) and $50,000 (for future mental suffering)?
“Because a nine-juror consensus was only able to be obtained with that split,” Bilder said. “There were only enough people who would say: This is how much we would give for past. And then from there, this is how much we would give for future.”
Juror Michael said that, at the beginning, “we were all over the place” on damages.
“There were some people that thought maybe $10,000 and there were some that thought $5 million or more,” he said.
They agreed not to levy punitive damages, “but we also wanted to [assign] some sort of, you know, culpability on their part” though jurors thought Herwehe bore “at least 20% or 30% of culpability” for letting herself undergo a shot made worse by use of expired lidocaine anesthetic.
Michael wasn’t impressed with the B Med Spa’s medical director, though.
“No one really felt that Dr. Haddad intentionally did these things to cause harm to Miss Herwehe,” he said. “Dr. Haddad was just a moron….. We all didn’t have a very good opinion of her.”
Apparently unaware of Bilder’s complaints, Michael said he thought “everyone was deliberating equally. Everyone was allowed to be heard.”
He said deliberations were fair and “we considered all the evidence,” although the panel could have used a little more information for deciding financial damages. “I think … everyone really had a hard time with [that], and … I’ll even go on the record: I wanted to give her more.”
On the courthouse porch, Herwehe called her sister Jessyca De Lara at Fort Benning, Georgia, where her Army husband is based.
We asked her: Did Dr. Haddad ever give you a formal apology?
“She doesn’t think she did anything wrong to this day,” Herwehe said. “So no.”
Despite the money award being lower than what she might have expected, Herwehe said: “I’m just happy I stood up for myself. And I just want them to learn their lesson and not treat people this way. Yeah, I’m happy.”
Haddad, apparently with child-care duties, wasn’t present for the 11-minute verdict reading by clerk Anthony Shirley. But her husband was — Mark Khashram wearing a dark-blue long sleeve shirt, jeans and gray Nike running shoes.
Their attorney Maya Fawcett was in court, but co-counsel Jack Reinholtz watched the verdicts remotely via MS Teams. Fawcett and Khashram declined to comment afterward.
On Saturday, Reinholtz noted that a state medical-malpractice law known as MICRA, dealing with noneconomic damages, will reduce the payout from $800,000 to $250,000.
“This means Ms. Herwehe will receive 1% of the 25M she sought from the jury,” he said via email. “Prior to trial, I advised Mr. Gruenberg that I felt the case should settle in that range. He summarily rejected that concept so no offer was presented.”
Reinholtz added: “Ms. Herwehe conspired with her sister to forge documents. She made unauthorized purchases on my client’s credit card and failed to advise of governmental inspections to obtain a permit. She was terminated for those reasons and the jury agreed. We are pleased the jury agreed.”
Josh Gruenberg and Pamela Vallero, Herwehe’s co-counsels, shared their reactions.
“We feel that this verdict really vindicates our client’s decision to stand up for herself,” Vallero said. “We basically received feedback from the jurors that they really believed our client had been harmed, that … nobody should go through what she’s been through.”
Gruenberg said he was told by some jurors that they felt “her body will repair itself” — her sexual function improving over time.
“I was looking at it a little bit differently,” he said. “I was looking at a 32-year-old woman who has had two years of an affected life and will have 40 more years of an affected sex life. And so I heavily weighted future damages.”
He echoed his client.
“Dr. Haddad has never apologized,” he said. “And I think what you saw actually at trial was that she was doubling down on the lies that she told about Jamie and the lies that she told about her disclosures of the risks, right?
“Everyone in that courtroom knew that she never divulged the serious side effects or risks that come with that O-Shot… I find that to be an egregious violation of our civil justice system. And, you know, we’ll see how she handles her practice going forward,” he said.
Gruenberg also condemned the O-Shot procedure that B Med Spa still offers.
“The O-Shot may be an option for some people, but you better have some serious problems with your vagina before you take part,” he said. “Someone with a normal sex life or even an adequate sex life should probably not engage in questionable shots to the clitoris. It has to be a true option of last resort.”
The O-Shot’s inventor, Dr. Charles Runels of Alabama — who trained Haddad — was on a defendants’ witness list but never appeared.
“[Runels] wasn’t going to come out to this,” Gruenberg said. “He’s not going to subject himself to cross-examination on a specious treatment that’s solely designed to line the pockets of the providers that inject it.”
Updated at 9:07 a.m. April 15, 2023