Ahmed v. Johnson & Johnson Health Care Sys.

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PAMELA A. AHMED, Plaintiff, v. JOHNSON & JOHNSON HEALTHCARE SYSTEMS, INC. and MEDICAL DEVICE BUSINESS SERVICES, INC., Defendants.

Civil Action No. 1:22-00190-KD-N

United States District Court, S.D. Alabama, Southern Division

February 20, 2024

ORDER

KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants Johnson &amp Johnson Healthcare Systems, Inc. and Medical Device Business Services, Inc's (collectively “Defendants”) Motion to Exclude Opinions of Richard Edwards, (Doc. 51), and Memorandum in Support thereof, (Doc. 52), Motion to Exclude Opinions of Dr. Kenneth Sands, (Doc. 53), and Memorandum in Support thereof, (Doc. 54), Plaintiff Pamela Ahmed's (“Plaintiff” or Ms. “Ahmed”) Responses In Opposition, (Docs. 6162), and Defendants' Replies, (Docs. 65-66). Upon consideration for the reasons set forth herein, Defendants' Motion to Exclude Opinions of Richard Edwards, (Doc. 51), is GRANTED to the extent that Mr. Edwards is prohibited from testifying as to any alternative design for the Hip Implant but is DENIED as to every other respect. Defendants' Motion to Exclude Opinions of Dr. Kenneth Sands, (Doc. 53), is DENIED.

This matter is also before the Court on Defendants' Motion for Summary Judgment, (Doc. 55), and Memorandum in Support thereof, (Doc. 56), Plaintiff's Response in Opposition (Doc. 60), and Defendants' Reply, (Doc. 67). Upon consideration and for the reasons set forth herein Defendants' Motion for Summary Judgment, (Doc. 55), is GRANTED as to Plaintiff's Count One (Product Liability/AEMLD), Count Two (Fraud/Suppression), Count Three (Failure to Warn and Defect), Count Four (Breach of Express Warranty), Count Six (Negligence), and Count Seven (Third-Party Beneficiary), but is DENIED as to Plaintiff's Count Five (Breach of Implied Warranty).^[1]

I. BACKGROUND

Ms. Pamela Ahmed underwent a right total hip arthroplasty on November 4, 2020, during which Dr. Todd Engerson implanted her with a prosthetic hip replacement device (the “Hip Implant”). (Doc. 56 at 7; Doc. 60 at 1). The Hip Implant consisted of a Pinnacle Altrx polyethylene liner, Pinnacle cup, and Biolix ceramic femoral head. (Doc. 56 at 7; Doc. 60 at 1-2; Doc. 63-1 at 3-4). Defendants manufactured and distributed these components. (Doc. 60 at 1; Doc. 63-1 at 34). Ms. Ahmed began physical therapy in November 2020. (Doc. 56-5 at 4). On or about December 25, some six weeks after surgery, Ms. Ahmed, while getting up to walk, heard a “popping” sound come from her right hip that “sounded like a firecracker go off.” (Doc. 63-2 at 7). Three days later, she visited an orthopedist, and on January 25, 2021, “she told her doctor that the hip pops and locks up sometimes.” (Doc. 56-5 at 4). Ms. Ahmed fell just prior to February 24, 2021. (Id.). During a visit with Dr. Engerson the next day, “radiographs revealed the hip was eccentrically located,” (Doc. 56-4 at 4), and Dr. Engerson noted that she needed a “right hip poly exchange,” (Doc. 56-5 at 4). Ms. Ahmed underwent revision hip arthroplasty on March 1, 2021. (Doc. 56-4 at 4). While she tolerated the revision surgery, she underwent more surgery for acute infection that March, (Doc. 56-6 at 5), which was concentrated in the right hip, (Doc. 63-3 at 8-9). She experienced two subsequent dislocations of the right hip. (Doc. 56-4 at 4-5; Doc. 56-5 at 4).

On April 12, 2022, Ms. Ahmed sued Defendants in Mobile County Circuit Court. (See Doc. 1-2). She puts forward seven claims: “product liability/AEMLD, fraud/suppression, failure to warn and defect, breach of express warranty, breach of implied warranty, negligence, and third-party beneficiary.” (Id. at 5-9). Ms. Ahmed prays for five categories of damages: “pain and suffering, mental anguish, medical extreme, physical disability, and anxiety.” (Id. at 10). On May 11, 2022, Defendants removed this action to the United States District Court for the Southern District of Alabama. (Doc. 1). Defendants have since moved to exclude all opinions of Plaintiff's expert, Mr. Richard Edwards, and Plaintiff's rebuttal expert, Dr. Kenneth Sands. (Docs. 51-54). Defendants also moved for summary judgment. (Docs. 55-56).

II. LEGAL STANDARD

A. Admissibility of Expert Testimony

Federal Rule of Evidence 702, as explained by the Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and its progeny, govern the admissibility of expert testimony. City of Tuscaloosa v. Harcos Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702.

District courts “must act as ‘gatekeepers' to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” Knepfle v. J-Tech Corp., 48 F.4th 1282, 1293 (11th Cir. 2022) (quoting Daubert, 509 U.S. at 589). The Eleventh Circuit interprets Rule 702 and Daubert such that expert testimony may be admitted into evidence if:

(1) The expert is qualified to testify competently regarding the matters he intends to address;

(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and

(3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d at 562. “[A]lthough there is some overlap among the inquiries into an expert's qualifications, the reliability of his proffered opinion and the helpfulness of that opinion, these are distinct concepts that courts and litigants must take care not to conflate.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). The trial judge's gatekeeping obligation under Daubert is not limited to scientific testimony but extends to other kinds of expert testimony based on technical or specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999).

The Eleventh Circuit has explained that this gatekeeping function is especially important because no other witness is free to opine on matters without firsthand knowledge of the facts in the case or rely upon otherwise inadmissible hearsay so long as the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004); see Fed.R.Evid. 703. That said, “courts must remain chary not to improperly use the admissibility criteria to supplant a plaintiff's right to a jury trial.” Moore v. Intuitive Surgical, Inc., 995 F.3d 839, 850 (11th Cir. 2021) (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”) (quoting Daubert, 509 U.S. at 596). Additionally, courts must abstain from credibility determinations and any assessment of the merits of the expert witness's opinion, matters reserved exclusively to juries, and instead focus on whether the witness satisfies the requirements under Rule 702 and Daubert. Jones v. Lowe's Home Ctrs., LLC, No. 6:17-CV-2018, 2019 WL 1254814, at *2 (M.D. Fla. Mar. 19, 2019); Quiet Tech., 326 F.3d at 1341 (“[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence.”).

Effective December 1, 2023, Rule 702 clarifies that the proponent of expert testimony must meet all the requirements for admissibility by a preponderance of the evidence. Fed.R.Evid. 702 Advisory Comm.'s Note to 2023 Amend.^[2] However, once the court finds it more likely than not that the admissibility requirement is met, attacks by the opponent will go only to the weight of the evidence. Id.

B. Summary Judgment

District courts shall grant summary judgment when the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. U.S. v. Four Parcels of Real Prop. in Greene and Tuscaloosa Cntys. in State of Ala., 941 F.2d 1428, 1437 (11th Cir. 1991); see Fed.R.Civ.P. 56(c). To discharge this “initial responsibility” when the nonmoving party has the burden of proof at trial, the moving party is not required to support its motion with such material negating the opponent's claim. Four Parcels, 941 F.2d at 1437-38. Rather, the movant may “show - that is, point out to the district court - that there is an absence of evidence to support the non-moving party's case.” Id. at 1438 (alteration adopted); see Fed.R.Civ.P. 56(c)(1)(B) (“A party asserting that a fact cannot be . . . genuinely disputed must support the assertion by: showing that . . . an adverse party cannot produce admissible evidence to support the fact.”). Alternatively, the...