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            It’s hot.  The Olympics are over (U.S. came out well ahead in medal count).  There are only about three weeks left to squeeze in a summer vacation.  ABC just announced the line up for the next season of Dancing With the Stars.  And the stores are jammed with notebooks, backpacks and sneakers (September always meant new sneakers!).  Sure, there are a few other things going on too – something about a vice-presidential candidate and are we taking pictures of Mars?  But really, as the summer winds down, we’d prefer to keep things simple.  So, our post today is nothing earth-shattering, but it is a nice decision we’d like you all to be aware of.
            The case is Smith v. Johnson & Johnson, Inc., 2012 U.S. App. LEXIS 16000 (5th Cir. Aug. 2, 2012).  The product was a pelvic mesh used in surgery to repair complications plaintiff suffered following a hysterectomy.  Id. at *2.  A few months later, additional surgery was required to remove the mesh which had eroded causing pain and other complications requiring a 5-week hospital stay.  Id. at *3.  Plaintiff appealed two decisions by the district court.  The first struck her experts and the second granted summary judgment.  We like them both, so we’ll summarize both.
            First, the experts.  Here plaintiff (really her counsel) failed on several fronts.  First, they were untimely.  On the day expert designations were due, plaintiff only identified two experts by name and CV – but did not serve defendant with an expert report or any other statement of the experts’ proposed opinions or bases for them in violation of  Rule 26(b)(2).  Id. at *4.  Expert reports weren’t served until two months later.  Two months after that, in response to defendant’s summary judgment motion, plaintiff served an affidavit from a previously unidentified third expert.  Id. at *4. 
            Both the district and appellate courts struck the third expert as untimely.  Plaintiff offered no reasonable explanation for why that expert could not have been designated by the deadline and all of his opinions could be obtained from the other experts.  Id. at *8-9.
As to the first two experts, plaintiff was given a pass.  The magistrate judge denied defendant’s motion to strike the experts as untimely, holding that “the importance of the expert testimony weighed heavily in favor of permitting the late designation.”  Id. The court did, however, award defendant costs finding that defendant “had incurred unnecessary expenses due to the plaintiffs’ lateness.”  Id. at *4-5. 
But, that pass only got plaintiff over the lateness hurdle.  The court went on to strike the experts “based on its finding that their reports were conclusory and provided no factual support or reasons for their conclusions.”  Just how conclusory were these reports?  Well, according to the court’s decision essentially they said:  We are doctors.  We reviewed plaintiff’s medical records. We believe the pelvic mesh caused plaintiff’s injuries.  Id. at *6-7.  Pretty bare bones, huh?  The court agreed:

According to [the expert’s] report, he did not consult any of the medical literature concerning Mersilene mesh or any of the documentation about the product. He also gave no reasons or explanation for his conclusions. It is a well established rule that without more than his credentials and subjective opinion, an expert’s testimony that a medical condition simply is so is not admissible.   

Id. at *7 (citation and quotation marks omitted).
            And the court didn’t stop there either.  Not only were the reports completing lacking in substance, they also didn’t address the critical issue in the case – “whether the warning provided by the manufacturer . . . was sufficient and whether any inadequate warning caused Smith’s injuries.”  Id.  Plaintiff had no admissible expert testimony in response to defendant’s motion for summary judgment.  Id. at *8. 
            Which brings us to said summary judgment motion, governed by Mississippi law.  Mississippi recognizes, and has codified in its Products Liability Act, the learned intermediary doctrine.  Id. at *10-11.  So, on a failure to warn claim, the question before the court was whether the plaintiff had established that her surgeon would not have used the pelvic mesh if he had received an adequate warning.  Id. at *11.  Plaintiff focused on the adequacy of the warning and overlooked the part about what her surgeon would have done. 
            As to the warning itself, plaintiff contended that it should have included information about adverse event reports detailing injuries allegedly incurred as a result of the use of the product.  Id. at *12.  But, given her surgeon’s testimony, what was or was not on the product’s label didn’t really matter:

[Plaintiff’s surgeon] testified that he was aware of the risks inherent in using Mersilene mesh, and stated that he was personally aware of the possibility of adverse events including extrusion and erosion. . . . [He] also testified that he read the Contraindications section of the Mersilene package insert, which advised that . . . subsequent infection may require removal of the material.   [He] saw infection as a very serious potential issue and took that possibility into account in deciding whether surgery with Mersilene mesh was the best option for Smith.

Id. at *12-13.   Because her surgeon was aware of risks but decided to use the product anyway “the adequacy of the warning is not a producing cause of the injury and the plaintiff’s recovery must be denied.”  Id. at *13-14. 
            Like we said, a good decision.  One we hope you have some use for in your own cases.  Now, back to your regularly scheduled end of summer activities.