Law

In Witt v. Stryker Corp., 2016 WL 1583816 (11^th Cir. Apr. 20, 2016), a Daubert decision in a Stryker knee replacement case, even ipse dixit seemed a bit generous.  Roughly translated, ipse dixit means "he himself said it."  But it's not clear that the expert in Witt said "it."  His report didn't seem to venture an opinion at all, no less one that came from applying a scientific process to true and accurate data.  It offered a feeling, almost a timid side note hoping not to be noticed: "I feel that the mechanical failure of the EIUS [the knee replacement system] Stryker components was the competent producing cause for the need for surgery on 04/17/2009 and for a revision arthroplasty to a total knee replacement."  Id. at *5 (emphasis added).  In case you thought this was just careless terminology, he did it again:  "I feel that the mechanical failure of the EIUS System installed on 04/18/2008 was a competent cause for the need for subsequent surgeries on 03/30/2011 and on 01/17/2012."  Id. (emphasis added). 

We haven't studied the case law on feelings.  But we are confident that, if it exists, it won't be favorable to this expert. 

Things grew more timid at the deposition.  It wasn't even clear what the expert was feeling:

Indeed, he explicitly disclaimed having any expert opinion about why the EIUS design was defective.  Besides broadly referencing the likelihood that the device suffered some mechanical failure, Dr. Lubliner offered no explanation for why the defect was one of design and not of manufacture.

Id. (emphasis added).  Oof. 

Daubert didn't ever have to be written for us to know how the Eleventh Circuit was going to rule on this one.  Finding his opinion, to say the least, undeveloped and unreliable, it upheld the trial court's exclusion of the expert:

Plainly, his sparse report and subsequent deposition do not explain how the looseness of the device is related to the failure of its mechanical operation, nor did the expert report so much as consider any alternative explanation.  Because Dr. Lubliner's opinion regarding Witt's EIUS device could reasonably be termed undeveloped and unreliable, the decision to exclude his testimony fell well within the district court's exercise of discretion as a gatekeeper. 

Id.  Seeing no viable causation expert, the Eleventh Circuit then upheld the trial court's grant of summary judgment to the defendant.  Id. at *7

The Eleventh Circuit issued two other rulings.  It upheld the trial court's refusal to allow plaintiff to amend her complaint a third time to add a failure to warn claim based on studies published two years after the device was implanted in plaintiff.  Id. at *3.  We certainly understand that ruling.  The Court also upheld the trial court's decision not to further extend the discovery deadline to allow more time for expert discovery.  Id. at *4.  Given the expert opinion that we saw, we had, you know, a feeling that would happen too.