We predict Spring cleansing is all nicely and good, however our most frantic clean-up efforts happen at yr finish. Scrolling via our inbox in December, we at all times discover circumstances from earlier within the yr that in some way acquired misplaced. None of your intrepid DDL bloggers chosen these circumstances for posting, maybe as a result of the circumstances had been too ugly for the protection, too boring, or, most certainly, too lengthy. However Kiser v. Terumo Medical Corp., 2023 WL 4778447 (E.D. Tenn. July 26, 2023), falls into none of these classes. It’s a full protection win excluding a plaintiff-side skilled and granting abstract judgment. It’s moderately fascinating and fairly concise. The Kiser case includes a declare of private accidents allegedly brought on by a vascular closure gadget used after coronary heart catheterization. The gadget had turn out to be dislodged after which trapped within the plaintiff’s femoral artery. The gadget occluded blood circulate and needed to be eliminated with a extra invasive surgical process. The plaintiff claimed that she suffered persevering with issues from the gadget surgical procedure and explantation, together with leg ache and restricted motion. The plaintiff alleged everlasting harm. Notably, the plaintiff’s surgeon had used the gadget “at the least a thousand occasions.”
The plaintiff introduced claims beneath the Tennessee Merchandise Legal responsibility Act for strict legal responsibility, negligence, punitive damages, compensatory damages, and lack of consortium. The gadget producer moved for abstract judgment. The defendant additionally moved to exclude the opinions of the plaintiff’s solely skilled, a non-MD supplies specialist. The Kiser courtroom started by analyzing whether or not the plaintiff’s skilled handed muster beneath Federal Guidelines of Proof 702 and 703. The No reply to that query resulted in a Sure reply to the defendant’s request for abstract judgment.
Tennessee, like most states, requires skilled testimony to determine legal responsibility in circumstances alleging manufacturing and design defects. The plaintiff skilled in Kiser asserted that she had measured the gadget’s suture and located deformities. The skilled report included (as does the Kiser opinion) a cellphone {photograph} of a portion of the gadget subsequent to a ruler. The courtroom thought-about the {photograph} and the skilled’s opinions fastidiously, and interpreted the {photograph} and skilled’s measurements to imply considered one of two issues: both the polymer materials measured by the skilled was not the right merchandise (the suture), or the “photographic proof forecloses any risk that her measurements had been correct.” Both method, the methodology was unreliable and flunks Rule 702. In the long run, the {photograph} “firmly convinces the Courtroom that no matter [the plaintiff expert] measured was not the suture.” Naturally, the plaintiff argued that whether or not the plaintiff skilled truly measured the suture was “a query of weight for the jury to determine relatively than a query of admissibility.” Ah sure, that previous standby at all times mouthed by plaintiff legal professionals when their specialists’ opinions grow to be mush: all the pieces goes to weight, not admissibility. But when the plaintiff skilled measured the mistaken piece, then any opinions about it being deformed can not presumably pertain to one thing she didn’t measure in any respect. Her opinions a couple of piece she by no means truly measured essentially are with out foundation, speculative, and thus inadmissible. Even when she occurred to measure the appropriate factor, the skilled’s crude measurement strategies, involving a regular ruler and a cell-phone image, weren’t dependable. We have no idea whether or not the gadget suture was deformed, however we do know that the plaintiff skilled’s opinions had been. Adios, skilled.
As a result of the plaintiff lacked any admissible skilled testimony on a supposed manufacturing or design defect, the Kiser courtroom granted abstract judgment in favor of the defendant. Neither harm nor a product malfunction alone create an inference of defect. Adios, total case – with prejudice.
