Huggins v. Stryker Corp., 2013 WL 1191058 (D. Minn. March 25, 2013), is another opinion that puts the “pain” in “pain pump litigation.” It’s also another example of a court putting the cart before the horse, a theme raised in Eric’s post yesterday. The opinion addresses three motions: Plaintiff’s motion to transfer the case to Oregon, where he lived and received his medical treatment, Stryker’s motion for summary judgment, and Stryker’s motion to exclude expert testimony. While the analysis of the Plaintiff’s motion to transfer – which was denied – is a worthwhile read, we’re going to focus on the court’s analysis of the motion for summary judgment and the Daubert motion. And the court considered them in that order, in spite of the fact that the Plaintiff’s arguments in opposition to summary judgment relied on the very opinions that the Defendant was challenging in its Daubert motion. Eric pointed out that there’s an olfactory advantage to the passenger when the cart is put before the horse. Huggins demonstrates that regardless of where the cart is placed, the odor-causing substance is still produced.
Mr. Huggins had shoulder surgery in February 2002. He was diagnosed with chondrolysis (a rapid destruction of cartilage) in the same shoulder later in 2002, but he didn’t file suit until May 2009. Stryker moved for summary judgment on the statute. Plaintiff argued for application of the discovery rule to get his case within Minnesota’s six year statute, citing federal court decisions recognizing such a rule in Minnesota. Noting the holding in a 2008 case in which the Minnesota Supreme Court specifically declined to recognize a discovery rule – and reiterated that they had “consistently” declined to adopt such a rule – the Huggins opinion nonetheless relies on a 1968 opinion that “suggested” or “appeared to hold” that in products liability cases, the cause of action will not accrue until plaintiff has some evidence of causation. Id. at *9. The opinion then goes on to find that because the first article recognizing a possible causal link between pain pump use and chondrolysis was not published until 2007, and the FDA did not issue an alert on the possible link until 2009, a jury could reasonably find that plaintiff Huggins did not and could not know of the causal connection between his injury and the pain pump use “until well within six years of the time he filed.” Id. Motion denied. But remember those dates.
Stryker next sought summary judgment on the failure to warn claim, arguing that the risk of chondrolysis was unforeseeable at the time of Plaintiff’s surgery, February 2002 – i.e., five years before the first article linking continuous pain pump use and chondrolysis. Id. at *10. Here, however, instead of looking at the literature relating to chondrolysis (as it had with the statute arguments), the court relied on Plaintiff’s expert reports’ claims that various “analogous” articles should have should have put Stryker on notice that continuously injecting anesthetic into the intra-articular joint space for several days could cause cartilage damage in general. Id. at *12. Note that they didn’t say “chondrolysis.” Here’s how the opinion deals with the missing link between pain pump usage and chondrolysis:
While no single article or study presented
exactly this conclusion, Huggins’ experts opine that a number of
studies are relevant by analogy and would have presented clear
red flags to Stryker. After considering the state of the literature and what
was known generally about the anatomy of cartilage and joint spaces, Huggins’
experts conclude that a manufacturer who conducted a thorough literature review
prior to the time of Huggins’ surgery would have known that intra-articular
pain pump use could cause serious cartilage damage.
Id. at *12 (emphasis added). While this analysis is slightly odiferous on its own, it’s made even more so by the fact that Stryker’s Daubert motion challenged the qualifications of the plaintiff’s experts to make these very conclusions, and also asserted that the experts had misinterpreted some of the conclusions in the articles they relied upon, ignored other relevant articles, and ultimately offered a conclusion that was not made in the literature. Id. at *15. Given this, one would think the court would want to address these challenges before relying on the experts’ opinions to defeat summary judgment. One would be wrong.
First, Stryker argued that the experts, an orthopedic surgeon and a doctor “who specializes in the study of musculoskeletal tissues,” were not qualified to opine on the standard of care applicable to a medical device manufacturer. Id. at *15. Despite language in each doctor’s report as to what a “reasonably prudent” device manufacturer would have found if it had conducted research before 2002, AND despite the fact that the plaintiff didn’t respond to this argument, AND in spite of the court’s own stated misgivings about whether the doctors were qualified to offer these opinions, the court allowed them, holding that both doctors were qualified to review medical literature in their field and to comment on “red flags” found in the literature. Id. at *16. The opinion offers this:
neither expert appears to actually opine on what
standards of care apply to medical device manufacturers, what medical device
manufacturers should do, or what medical device manufacturers should
know. Rather, their opinion regarding the medical literature is simply that if
a manufacturer had conducted a review of the literature at the time of Huggins’
surgery, the manufacturer would have been put on notice that
intra-articular pain pump use could cause cartilage damage.
Id. at *16 (emphasis in original)(yes, really). Clearly, that’s TOTALLY different from opining on the applicable standard of care. The court went on to reject Stryker’s arguments that the testimony was inadmissible because two of the articles that the plaintiff’s experts relied upon actually undermined their positions when read correctly. Id. at *17. The court chalked this up to differing “interpretations” of the literature by the two sides, and concluded that the plaintiff’s conclusions were not so fundamentally unsupported that they would not assist the jury. Id. With regard to three articles contradicting plaintiff’s position that his experts had ignored, the court reviewed the publications and decided that their omission did not impact on the admissibility of the experts’ opinions, because Stryker could cross-examine the experts as to these omitted articles. Id. We note that according to the opinion, the plaintiff’s experts relied on universe of just eleven articles – and one of the challenged experts relied on only nine of the articles. To us, this makes the omission of three articles a bit more compelling than if there were dozens of articles out there on this topic (a topic that was only “analogous” to the actual issue presented in the case, we remind you). Not surprisingly, with the cart before the horse, Stryker wound up on the wrong end of things.