Oester v. Wright Med. Tech.

Greg Oester, et al., Plaintiffs, v. Wright Medical Technology, Incorporated, Defendant.

No. CV-19-04763-PHX-SPL

United States District Court, D. Arizona

August 24, 2021

ORDER

Honorable Steven P. Logan United States District Judge

Before the Court is Defendant Wright Medical Technology Incorporated (“WM”)'s Motion for Summary Judgment (Doc 49) and Motion to Partially Exclude the Opinions of Mari Truman. (Doc. 51) Both Motions are fully briefed and ready for review. (Docs. 52, 53, 54, 55) Defendants seek summary judgment on Plaintiff Greg Oester's failure to warn and punitive damage claims. (Doc. 49 at 5-6) They also seek to exclude part of Plaintiffs' expert Mari Truman's opinion. (Doc. 51 at 4) The motion to partially exclude the expert testimony will be denied and the motion for summary judgment will be granted, as set forth below.^[1]

I.INTRODUCTION

This is a products liability case involving medical hip replacement systems manufactured by Defendant WM. On December 20, 2006 Plaintiff had a hip replacement system implanted specifically the Profemur Total Hip System, which included “a metal Conserve^[2] acetabular cup, a cobalt chrome Conserve femoral head, a Profemur modular neck, and a Profemur femoral stem.” (Doc. 1 at ¶¶9, 48) The implants allegedly failed because the metal-on-metal design of the components allegedly resulted in excessive wear, corrosion, and debris. (Doc. 1 at ¶¶9, 20) The implant had to be replaced with “hip revision surgery” after the hip failed and there were “elevated metal ions” and “metallosis”^[3] found in the hip area. (Doc. 1 at ¶¶9, 52)^[4]

Plaintiff filed a complaint against Defendant WM on July 19, 2019, with five counts. (Doc. 1) The remaining claims left for the Court to resolve are: Count I, negligence, Count II, strict liability-design defect, Count IV, strict liability-failure to warn, and Count V, punitive damages. (Doc. 49 at 5) Plaintiff retained expert Mari Truman. In her expert report she offers opinions regarding “alleged fretting, wear and corrosion of Plaintiff's CONSERVE® femoral head component.” (Doc. 51 at 4)

Defendants ask the Court to exclude Ms. Truman's opinions regarding corrosion and metal wear because they are “speculative and not reliable.” (Doc. 51 at 4) Defendants also ask the Court to grant summary judgment in their favor on Counts IV and V - strict liability failure to warn and punitive damages. (Doc. 49 at 5-6)

II.LEGAL STANDARDS

A. Daubert Motions

Federal Rule of Evidence (“FRE”) 702 permits parties to file motions to strike to ensure relevance and reliability of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999). Courts have a “gatekeeping” function when it comes to expert testimony. Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), as amended (Apr. 27, 2010). “When an expert meets the threshold established by Rule 702 as explained in Daubert, the expert may testify and the jury decides how much weight to give that testimony.” Id. When the expert does not meet the threshold, the Court may prevent her from providing testimony. See Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) (“Basically, the judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.”).

“Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.” Fed.R.Evid. 401. Reliability is determined separately. “The trial court must first assess whether the testimony is valid and whether the reasoning or methodology can properly be applied to the facts in issue.” Puente v. City of Phoenix, No. CV-18-02778-PHX-JJT, 2021 WL 1186611, at *1 (D. Ariz. Mar. 30, 2021) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). “The focus ... must be solely on [the expert's] principles and methodology, not on the conclusions that they generate.” Id. (citing Daubert, 509 U.S. at 594).

B. Summary Judgment

A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant can do so, the burden then shifts to the non-movant who “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and, instead, must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). When considering a motion for summary judgment, a court must view the factual record and draw all reasonable inferences in a light most favorably to the nonmoving party. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002).

III.DISCUSSION

The Court will address the Daubert motion first, then the motion for summary judgment.

A. Daubert Analysis of Plaintiffs' Expert Mari Truman

Truman is a “biomechanical and biomedical engineering expert.” (Doc. 51 at 5) Truman created her expert report without seeing the components of the hip replacement system that Plaintiff had removed from his body, or pictures or x-rays of the device or hip. (Docs. 51 at 5, 7; 51-1 at 12) Because Truman failed to examine Plaintiff's specific hip replacement, Defendant seeks to exclude her opinions regarding corrosion and metal wear “because they are speculative and not reliable.” (Doc. 51 at 4) It also seeks to exclude her opinions regarding the general design defect because they do not fit the facts of the case, due to her failure to examine the specific component. (Doc. 51 at 4-5) Finally, Defendant seeks to exclude the medical causation opinions because they are outside the scope of Truman's expertise. (Doc. 51 at 5)

i. Reliability

“An expert's testimony may [be] excluded where it is based on subjective beliefs or unsupported speculation which is no more than unreliable ipse dixit guesswork.” Friend v. Time Mfg. Co., 422 F.Supp.2d 1079, 1081 (D. Ariz. 2005) (citing General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (holding that trial court may properly exclude ipse dixit opinions where “there is simply too great an analytical gap between the data and the opinion proffered”)). This determination is up to the district court's discretion. Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir. 1998), as amended (Nov. 12, 1998). “Unlike an ordinary witness… an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Sementilli, 155 F.3d at 1134 (citing Daubert, 509 U.S. at 592). When an expert opinion is based on information such as medical records and the expert's knowledge, training, and education, it is sufficient under FRE 703. Id. (“Federal Rule of Evidence 703 allows an expert to base his or her opinions and inferences on facts and/or data ‘perceived by or made known to the expert at or before the hearing.'”) Experts are not required by the Federal Rules of Evidence to examine the subject of the case firsthand. In Sementilli, the defense's causation expert witness did not examine the plaintiff, was not present at the scene of the pertinent slip and fall accident, and was unaware of plaintiff's thought process prior to the accident, but the panel found his opinion was able to be considered at summary judgment, based on examination of the medical records and his personal knowledge, training, and experience. Id.

Here, Truman's opinion regarding the device's corrosion was based on medical records and deposition testimony from the revision surgeon. (Doc. 52 at 4) Plaintiffs argue these materials are sufficient to support her opinion regarding the corrosion. (Doc. 52 at 4- 7) Defendant argues this methodology was insufficient because Truman offers opinions about the specific device's corrosion and wear yet did not examine the device to see whether it actually demonstrated such damage. (Docs. 51 at 6-8, 53 at 6) Defendant offers examples from other cases in which Truman's opinions on other medical devices were excluded because she relied too much on her training, background, and prior experience and not on the device itself. (Doc. 51 at 7-8, 53 at 6) Plaintiffs argue the reliance on the observations of the surgeon's observations during the procedure was sufficient. (Doc. 52 at 8)

The cases involving Ms. Truman that Defendant offers as examples are either not factually aligned with the case here or are from outside the District of Arizona and Ninth Circuit. In re: Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis With Kinectiv Tech. and Versys Femoral Head Prod Liab. Litig. v. Zimmer, Inc., et al., Nos. 18-MD-2859, 18-MC-2859, 19-CV-699 (PAC), 2021 WL 3475681 (S.D.N.Y. Aug. 6, 2021); Hardison v Biomet, Inc., No. 5:19-cv-00069-TES, 2020 WL 4334108 (M.D. Ga. July 27, 2020); Fitzsimmons v. Biomet Orthopedics, Inc., No. 2:19-cv-182-FTM-29NPM, 2020 WL 6784236, at *4 (M.D. Fla. Nov. 18, 2020). Defendant also offers Ninth Circuit case Triton Energy Corp. v. Square D Co. for the...