Plaintiff’s Professional’s “Intestine” Feeling Not Sufficient to Face up to Rule 702 or Abstract Judgment


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Hearken to your intestine.  Comply with your instincts.  Belief your instinct.  Nice recommendation in lots of conditions.  Like deciding whether or not to purchase skinny denims or whether or not to purchase your endlessly house.  Or, when issues appear “off” or really feel “harmful.”  Or, when your physique is attempting to let you know one thing about your well being.  These are all instances to research your emotions a couple of scenario and permit your “intestine” or “sense” to be your information (or a minimum of a again seat driver you don’t ignore).  A basic sense, feeling, or impression, nonetheless, doesn’t get the job completed when you’re the medical causation knowledgeable in a posh medical system case.  Because the court docket in Hobus v. Howmedica Osteonics Company, 2023 WL 6850144 (D. Ore. Oct. 17, 2023) advised plaintiff when it dismissed his case. 

Plaintiff suffered from again issues almost his entire life that had been exacerbated by a automobile accident in 2014 that led to spinal fusion surgical procedure in 2016 throughout which his surgeon selected to implant an expandable interbody fusion cage system manufactured by the defendant.  Plaintiff alleged that the collapse of the cage brought about him to need to bear revision surgical procedure and brought about him to undergo power ache.  Plaintiff submitted three knowledgeable studies – a medical causation report from his implanting surgeon, a design defect report from a biomedical engineer, and a damages report.  Defendant moved to exclude all three and for abstract judgment.  The movement on the damages knowledgeable was denied which was of no consequence as a result of the court docket excluded the medical causation knowledgeable in his entirety and the majority of the engineering opinion. 

As a result of plaintiff’s medical causation knowledgeable was his treating surgeon, the court docket took its time detailing the surgeon’s opinions within the treating data.  Opinions akin to:  plaintiff’s MRI reveals no twine compression or nerve root impingement and “there’s nothing there to account for his [pain];” or based mostly on additional MRIs the surgeon noticed “no apparent issues there or rationalization as to why [plaintiff] was having signs.”  Most significantly, when system failure was recognized, his surgeon famous that plaintiff had achieved a “stable fusion” and subsequently the failure was “of questionable significance,” there was nonetheless no neural impingement, and there was a “low” chance that revision surgical procedure would alleviate plaintiff’s ache.  Id. at *2-3. 

Flash ahead to turning into plaintiff’s knowledgeable, and the surgeon’s new opinion was that the collapse of the cage was an “essential contributing issue” to and “main trigger” of plaintiff’s accidents.  Id. at *5.  Plaintiff’s knowledgeable report supplied “little element” relating to how he reached this new conclusion.  And when requested at deposition what his methodology was, the most effective he might say was “it’s simply my sense.”  His “intestine says he may need completed higher.”  Confirming he used no methodology, he mentioned “I simply have my instincts as a clinician.”  Id. at *5-6.  So, it was no stretch for the court docket to conclude that plaintiff’s knowledgeable “utilized no typically accepted methodology in arriving at his medical conclusions.”  Id. at *6.  Medical expertise could be a foundation for dependable knowledgeable testimony, however solely the place the clinician has “intensive expertise” with the problem on which he’s opining.  Right here, plaintiff’s knowledgeable had just one affected person who skilled a cage collapse – plaintiff.  Id.  The court docket discovered it “troublesome” to name that ample expertise on which to base his opinion.                

Plaintiff additionally tried to argue that his surgeon relied on his personal medical data to succeed in his conclusions.  As identified above, that’s a stretch too.  However extra importantly, the court docket said the overall precept that

Though medical data might, in some circumstances, help a clinician’s total conclusion, they don’t independently confirm the methodology that the clinician used. That’s, whereas a medical file often is the foundation of an knowledgeable’s findings, it affords no rationalization for the validity of the knowledgeable’s strategies.

Id.  At most, the surgeon’s data demonstrated a “constant uncertainty” as as to if the cage collapse was a doable explanation for plaintiff’s accidents. 

Lastly, plaintiff’s knowledgeable failed to handle “the quite a few doable elements inflicting plaintiff’s ache.”  Id. at *8.  He deemed the cage collapse was a major causative issue of plaintiff’s ache with out contemplating the impression of different elements affecting ache.  “[A]n knowledgeable opinion that wholly fails to contemplate different causes can’t be a reliably based mostly opinion.”  Id.  Taken collectively, the court docket had greater than sufficient causes to exclude plaintiff’s medical causation knowledgeable.

Plaintiff’s design defect knowledgeable didn’t fare significantly better.  She concluded that to be protected, defendant’s cage wanted to resist a power of two,000 N.  However past that, the court docket couldn’t conclude that she reliably utilized that opinion to the info of the case.  She checked out six medical failure studies however performed no inquiry as to why the units failed in these circumstances – she had no info on these sufferers’ ages, weights, exercise ranges, and so forth. to know the quantity of power positioned on these units.  She “assumed” these failures had been as a result of a design defect.  Do assumptions ever actually work out in any context?  Id. at *11.

Plaintiff’s knowledgeable didn’t check the mannequin of cage that was utilized in plaintiff’s surgical procedure.  In different phrases, the knowledgeable didn’t decide whether or not the system might face up to 2,000 N earlier than opining it was faulty for failing to satisfy that customary.  The corporate testing that the knowledgeable did depend on was about “breakage” not system collapse and the knowledgeable supplied no rationalization for her “leap” from breakage to break down making her opinion “wholly speculative.”  Id. at *12.  Not solely did the knowledgeable not check the mannequin, she didn’t check the precise system utilized in plaintiff’s surgical procedure.  She might have however determined to not due to the price.  Failing to take this step that might have supplied an goal foundation for her opinion, “deeply undermines the reliability” of her conclusion.  Id.  

The design knowledgeable additionally supplied an opinion on possible different design.  She supplied two—the primary was not an alternate design and the second was not possible.  First, she urged different designs that weren’t expandable.  However that may be a important design characteristic of defendant’s product that gives utility not out there in static cages.  Id. at *14.  So, as we’ve identified in different circumstances a distinct product is just a distinct product, not an alternate design of the product at problem.  Second, plaintiff’s knowledgeable testified about methods the expandable cage may very well be improved however had not carried out any evaluation to find out if any of her concepts had been possible.  So, she couldn’t testify on different design.

Lastly, maybe realizing the place issues had been headed together with his medical causation knowledgeable, plaintiff tried to sneak in medical causation by means of his biomedical engineer.  However rendering opinions as to the particular explanation for plaintiff’s accidents goes properly past her engineering experience.  Her engineering expertise and coaching might enable her to make basic findings relating to what accidents might happen from a cage collapse, however providing opinions that join the cage collapse to plaintiff’s particular accidents crosses into medical causation on which this knowledgeable was not certified to opine.

In the long run, it was the exclusion of plaintiff’s medical causation knowledgeable that led the court docket of award abstract judgment for the defendant.  Oregon legislation requires knowledgeable testimony the place causation includes complicated medical questions. With no causation knowledgeable, plaintiff couldn’t meet his burden of proof which is only a tad extra onerous than intestine emotions and fundamental instincts.


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