When we read about a personal injury claim concerning a drug or device, we expect that the claim will be made by a patient. Khoury v. Philips Medical Systems, 2010 WL 3119902 (8th Cir. Aug. 10, 2010), has a certain man-bites-dog quality because the plaintiff is a doctor who was allegedly injured by a device he was using on a patient.

One day in 2003, Dr. Khoury, a cardiologist, was performing a coronary angiogram using a device designed and installed by Philips Medical called, for some reason, the Integris BH5000 biplane system. The biplane system had a radiation shield and monitor bank mounted on a single ceiling track. During the angiogram, the nurse moved the monitor bank without warning, which caused the radiation shield to move toward the patient. Dr. Khoury grabbed the radiation shield to stop it from hitting the patient and felt pain radiate from his neck to lower back.

Sounds like the nurse screwed up, right? Especially when you read in the opinion that Dr. Khoury testified it was common practice for nurses to announce when they are moving the monitor bank. Id. at *2. But doctors don’t like to sue nurses, in part because nurses don’t have the same kind of money device companies have. So Dr. Khoury sued Philips.

Dr. Khoury’s theory against Philips kept shifting from defective design to negligent installation to something else, usually a sign that a plaintiff does not have one good theory. But his amended complaint alleged a strict liability/design defect claim, and when pressed, his counsel said that that was his theory. Id.

Plaintiff’s only proffered expert support for his design defect claim was the testimony of an ergonomist. The district court found this expert unqualified because he was not trained, experienced or educated in the design of medical devices or laboratories and unreliable because he never replicated the circumstances of the accident, conducted relevant tests, or considered alternative causes. Id. Without expert testimony, Dr. Khoury could not prove his design defect claim and had summary judgment entered against him. Id.

On appeal, Dr. Khoury tried to shift back to a negligent installation theory but then said in his reply brief that “Philips got a wrongly designed installation precisely correct.” Id. at *3. The Eighth Circuit said he was really claiming defective design and had waived his negligent installation theory. Id. Just for good measure, the court said the record contained no evidence supporting the negligent installation theory. Id.

The court then concluded that the district court acted within its discretion in excluding plaintiff’s expert on the design issue because he had no training, education or experience in the design of laboratories, monitor banks, or radiation shields and therefore was not qualified to testify about design defect. Id. at *4. The expert’s area of expertise was ergonomics – “the scientific study of the efficiency of man in his working environment,” according to the online Oxford English Dictionary definition quoted by the court. Id. Some courts have been duped or confused by a new, soft science such as ergonomics or human factors, which plaintiffs can pitch as applicable to just about anything, but not the Eighth Circuit. The court reaffirmed the correctness of excluding an expert testifying outside his area of expertise and reminded us that it had reversed district courts for permitting experts to testify outside their fields. Id.

Even though Khoury is unusual because the injured plaintiff is a doctor rather than a patient, the doctor suffered the same fate as patients without qualified experts. Khoury is a handy case to have if you are in the Eighth Circuit and want to exclude a plaintiffs’ expert venturing out of his or her area of expertise.