E.D. Tenn. Holds that Plaintiff Supplies Skilled Opinions Did Not Measure Up

We predict Spring cleansing is all nicely and good, however our most frantic clean-up efforts happen at 12 months finish.  Scrolling by our inbox in December, we at all times discover circumstances from earlier within the 12 months that in some way bought 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, more than likely, 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 professional and granting abstract judgment.  It’s moderately attention-grabbing and fairly concise.  The Kiser case entails a declare of non-public accidents allegedly attributable to a vascular closure machine used after coronary heart catheterization.  The machine had turn out to be dislodged after which trapped within the plaintiff’s femoral artery.  The machine occluded blood move and needed to be eliminated with a extra invasive surgical process. The plaintiff claimed that she suffered persevering with issues from the machine surgical procedure and explantation, together with leg ache and restricted motion.  The plaintiff alleged everlasting harm.  Notably, the plaintiff’s surgeon had used the machine “no less than 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 machine producer moved for abstract judgment. The defendant additionally moved to exclude the opinions of the plaintiff’s solely professional, a non-MD supplies specialist.  The Kiser court docket started by analyzing whether or not the plaintiff’s professional 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 professional testimony to determine legal responsibility in circumstances alleging manufacturing and design defects.  The plaintiff professional in Kiser asserted that she had measured the machine’s suture and located deformities.  The professional report included (as does the Kiser opinion) a cellphone {photograph} of a portion of the machine subsequent to a ruler.  The court docket thought of the {photograph} and the professional’s opinions fastidiously, and interpreted the {photograph} and professional’s measurements to imply one in all two issues: both the polymer materials measured by the professional was not the right merchandise (the suture), or the “photographic proof forecloses any chance that her measurements had been correct.”   Both manner, 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 professional truly measured the suture was “a query of weight for the jury to resolve moderately than a query of admissibility.”  Ah sure, that previous standby at all times mouthed by plaintiff attorneys when their specialists’ opinions transform mush: all the pieces goes to weight, not admissibility.  But when the plaintiff professional measured the flawed piece, then any opinions about it being deformed can’t probably 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 proper factor, the professional’s crude measurement strategies, involving a typical ruler and a cell-phone image, weren’t dependable. We have no idea whether or not the machine suture was deformed, however we do know that the plaintiff professional’s opinions had been.  Adios, professional.

As a result of the plaintiff lacked any admissible professional testimony on a supposed manufacturing or design defect, the Kiser court docket granted abstract judgment in favor of the defendant. Neither harm nor a product malfunction alone create an inference of defect.  Adios, complete case – with prejudice.