Photo of Rachel B. Weil

We loved La La Land.   We were enchanted by the colors and the music and the dancing.  We were transported by the dreams-come-true and saddened by the could-have-beens.  We disappeared into the characters’ world for two hours and were not ready when the lights came up.   For us, it was the epitome of a movie experience, and we were thrilled – momentarily – when it was announced as Best Picture.  But, as all who witnessed Oscargate (and anyone who didn’t spend the last week in a submarine) can attest, simply saying it didn’t make it so.

Last week, in Bowersock, et al. v. Davol, Inc. and C.R. Bard, Inc., 2017 WL 711849 (S.D. Ind. Feb. 23, 2017) the United States District Court for the Southern District of Indiana reached the same conclusion, excluding the plaintiffs’ experts in a hernia mesh case.  The plaintiffs claimed that a component of the defendants’ hernia mesh patch – a polyethylene terephthalate ring – perforated the intestines of the plaintiffs’ decedent, ultimately resulting in sepsis and death.

An autopsy was performed and concluded that the decedent’s small bowel and colon were intact, without perforation. But the hernia mesh patch was not retrieved from the decedent’s body before she was buried, so, seven years later (!!!), the plaintiffs had the body exhumed so the patch could be retrieved and analyzed, after which they submitted the reports of two causation experts – a surgeon and a biomedical engineer – to opine that components of the mesh patch caused the decedent’s injuries.

The Surgeon

The plaintiffs’ first expert, a general and gastrointestinal surgeon who used the defendants’ patch in his own practice, reviewed the patch explanted from the decedent’s exhumed body. He opined that the ring, though not broken, had buckled, creating a sharp edge that rubbed against the decedent’s bowel and perforated it.

In his deposition, the expert admitted that there was no evidence that the decedent’s bowel had been injured and that he deduced that there must have been an injury because there were fecal bacteria in a culture of an abscess in the decedent’s abdominal wall. He opined that either the decedent’s treating physicians and the doctor who performed the autopsy all missed the bowel perforation or it remained open long enough for infection to develop then closed before anyone could discover it.  He wasn’t sure which, and he admitted that his theory had never been described in medical literature.  He said that he had seen the same phenomenon in his own patients, but he couldn’t identify in which patients he had seen it and couldn’t produce the records of any patient in which it occurred.

The court held, “Setting aside the fact that [the surgeon was] unable to produce any documentation or recollection relating to his previous patients exhibiting [the] theory,” . . . the theory had not been tested, subjected to peer review, or analyzed for known or potential error rate, and it was not generally accepted in the specific scientific field. Bowersock, 2017 WL 711849 at *8 (citation omitted).  As such, the surgeon’s opinion, amounting to nothing more than his own ipse dixit, “[could] not be deemed sufficiently reliable under Rule 702,” and was excluded in its entirety. Id. at *9.

The Biomedical Engineer

Although he had never examined or seen pictures of the decedent’s exhumed patch, the plaintiffs’ biomedical engineering expert inferred that a bowel injury had occurred on the basis of the bacterial culture and concluded that the mesh patch “more likely than not” caused the injury. But he conceded that was not aware of any medical literature describing a bowel injury when the ring component of the patch was intact.  And, while he said that he had worked on case reports consistent with his proposed mechanism, he couldn’t remember any case with an injury similar to the decedent’s.

Emphasizing that the expert had never tested his causation theory, had never performed testing on defendants’ mesh patch or any other hernia mesh product with a composite ring, and was unaware of any test or study demonstrating his proposed failure mechanism or a bowel injury resulting from it, the court concluded, “Plaintiffs do not cite to any of the Daubert factors or any specific qualifications or expertise that would allow [the expert] to testify as to how  the  [mesh patch]  buckled and caused [the decedent’s] injury.  [They] . . . fail to set forth any evidence to establish the reliability of [the expert’s] opinion as to medical causation.” Id.   And this expert, too, was excluded.

With no causation experts, the plaintiffs could not satisfy their burden of proof, and the court granted summary judgment in favor of the defendants.   A nice decision, and a lesson for plaintiff lawyers who still believe that experts can forsake all methodology, let alone reliable methodology, if they utter their opinions with sufficient conviction.

By the way, we liked Moonlight, too.   But not nearly as much as La La Land.