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Thompson v. Zimmer Inc., 2013 U.S. Dist. LEXIS 137391 (D. Minn. Sept. 25, 2013), is one of the good ones.  It stands for the notion that, when the evidence isn’t there, the defense wins.  It was a hip implant case, and the defense won because the court placed the evidentiary burden where it belonged, on the plaintiff, and because the court didn’t accept what often amounted to speculation from the plaintiff’s expert.

The defense’s first victory was on plaintiff’s failure to warn claim.  If you read our blog with even mild regularity, you know that
we stress the principle that the burden lies with the plaintiff to show that a prescribing doctor would’ve acted differently under an allegedly adequate warning.  And so, in a device case, a plaintiff who presents absolutely no testimony from the doctor who implanted the device simply can’t meet that burden.  And the defendant is entitled to summary judgment.  That’s what the Thompson court did:

In this case, no reasonable jury could find that Zimmer’s failure to warn caused Thompson’s damages. Thompson chose not to depose Dr. Kavanaugh, the surgeon who implanted the allegedly defective liner, and who would have been the recipient of the warnings that Thompson contends should have been given.  Consequently, there is no evidence that Dr. Kavanaugh would have implanted the acetabular shell at a different angle, or that he would have chosen a different liner, if he had been given those warnings.

Id. at 9-10.  The opinion has additional helpful language that elaborates on the complexity of a treating doctor’s implant decision and, therefore, why plaintiffs need evidence from that doctor:

An artificial hip is not a single, integrated device; instead, implanting surgeons choose a combination of modular components based on the risks and benefits to the individual patient.  Without Dr. Kavanaugh’s testimony, there is no way for the jury to know why he chose the particular configuration of components that he implanted or why he implanted
them at a 60 to 65 degree angle of abduction. It may well be that Dr. Kavanaugh was fully aware of the risks that Thompson says he should have been warned of, and that Dr. Kavanaugh concluded that the benefits of implanting the liner at that particular angle (in conjunction with the other components he chose) outweighed those risks.

Id. at *10-11. In short, plaintiff’s failure to depose the implanting doctor meant that there was “no evidence from which a jury could conclude that a warning would have caused Dr. Kavanaugh to do anything differently.”  Id. at *11.

The defense also won on plaintiff’s design defect claim because key aspects of the opinions of plaintiff’s design defect expert seemed to be based on speculation, not reliable evidence. For instance, she claimed that the liner for the Zimmer hip implant device was susceptible to premature fatigue fracture and rim dissociation.  But there had been only three such reported adverse events from amongst 41,000 devices sold.  That’s a .007 fracture rate.  Id. at *14.  That’s really low.  Plaintiff’s expert tried to undermine this rate by pointing to testimony of a doctor from another case as to liner fractures that he’d
encountered in his own practice.  The problem with this testimony – apart from it involving only one doctor and being entirely anecdotal – was that these incidents, for the most part, occurred before the Zimmer device was even on the market.  Id. at *15.  That’s a big problem.  Plaintiff’s expert also pointed to a Zimmer engineer’s testimony that he didn’t know whether the actual adverse event rate was higher than the reported .007 rate. Id. at *16.  That seems like flimsy counter-evidence.  The
court thought so:

It is true that Humphrey testified that Zimmer does not know about cases that are not reported to it.  But, as with Dr. Stanley’s testimony, that truism is an extremely slender basis on which to disregard Zimmer’s reported fracture rate and, more importantly, provides no basis to calculate a higher fracture rate.

The expert’s inability to reliably quantify a different liner fracture rate or point to another device on the market with a lower rate rendered her opinion unreliable:

Truman’s failure to explain the extraordinarily low reported fracture rate (other than by speculating that it must be inaccurate), coupled with her inability to quantify the risk of fracture, renders her opinion that the device is prone to premature fracture highly questionable. This is particularly true in light of Truman’s acknowledgment that she does not know of any liner with a zero percent fracture rate.  Indeed, Truman does not identify a single liner with a lower fracture rate than the Longevity liner that was implanted in Thompson. In light of these failures, Truman’s opinion that the liner is prone to premature fracture lacks the necessary factual support to be admissible.

Id. at *18. The design expert’s opinion had many other problems, including her failure to rule out other causes of the fracture.  For instance, she didn’t rule out the possibility that the liner fracture occurred during a fall by the plaintiff, during plaintiff’s revision surgery, or while plaintiff was ambulating on it with a dislocated hip.  Id. at *20-22.  She didn’t even know when it occurred.  There was just too much that the expert didn’t know or do.  Accordingly, the court held that because the expert “cannot determine when or where the damage first occurred to the liner, her opinion that the liner contributed to [plaintiff’s] dislocations is not based on sufficient facts or data to be admissible.”  Id. at *22.  These deficiencies were more than enough for the court to rule.  Plaintiff simply hadn’t met her evidentiary burden to show a design defect in the device
implanted in her hip.  When that happens, it’s summary judgment for defendant.

This opinion is all about proper evidence and who has the burden to produce it.  When the plaintiff doesn’t produce such evidence, the defense should win.  This opinion spells that out very nicely and in a couple of different contexts.  This is one to keep in your briefing tool box.