This blogger took last week off – from everything except some sand, the ocean, and drinks with little umbrellas.  And books!  Books set in the post-Civil War era (The Book of Lost Friends), in post-World War I (The Last Train to Key West), during World War II (The Only Woman in the Room and Of Windmills and War), and one that spanned from the 1950s to the 1990s (The Vanishing Half).  Books that contain great stories.  Great stories that don’t have perfect endings; where not everything gets wrapped up neatly; where people both lose and win along the way.  That’s vacation reading.  For blog reading, we prefer the ones where at the end the winners are all on the defense.  But, if you can’t win them all, we’ll take all but one.

That’s what happened in Morris v. Biomet, Inc., 2020 U.S. Dist. LEXIS 181364 (D. Md. Oct. 1, 2020).  Plaintiff alleged she suffered injuries as a result of the defendant’s product which was implanted during her right hip replacement surgery.  Plaintiff underwent removal of the device almost four years after implant when she began suffering complications.  Following the revision surgery, plaintiff suffered multiple hip dislocations and had to undergo additional surgeries, all of which she alleges were caused by the original implanted device.  Id. at *1-9.

Defendant moved to exclude plaintiff’s expert and for summary judgment.  Defendant’s primary attack on plaintiff’s expert was the lack of a sufficient differential diagnosis to establish specific causation.  The court acknowledged that differential diagnosis is a “standard scientific technique” used to identify the cause of a medical problem by ruling out things that are not the cause.  And while an expert need not have ruled out “every possible alternative” for his opinion to be admissible,

 a differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation. Thus, if an expert utterly fails to consider alternative causes or fails to explain why the proffered alternative cause was not the sole cause, a district court is justified in excluding the expert’s testimony.

Id. at *18 (citation omitted).  Applying that standard to the Morris case, the court found plaintiff’s expert missed the mark as to the bulk of plaintiff’s alleged damages.  The expert conducted a sufficient differential diagnosis as to plaintiff’s initial revision surgery.  As to the cause of that surgery, plaintiff’s expert considered and eliminated such other causes as misplacement by the surgeon, post-operative complications, and plaintiff’s medical history.  Id.  at *19.  However, as to all of plaintiff’s subsequent hip dislocations, surgeries, and infections, her expert merely concluded that they too stemmed from the defendant’s device.  As opposed to a “rigorous differential diagnosis,” this set of causation opinions was based on “speculation and subject belief.”  Id. at *20.  In other words, it is only ipse dixit and therefore excluded.  Id.  The court also precluded plaintiff’s expert, an orthopedic surgeon, from testifying about the reasonableness of plaintiff’s medical bills.  The surgeon testified he doesn’t review his own patient’s bills and therefore was offering nothing other than his speculation that they were reasonable.  Id. at *20-21.

The court next moved to defendant’s motion for summary judgment.  We’ll start with the failure to warn claims.  Maryland is a learned intermediary state, so defendant’s duty to warn was to the physician not the plaintiff.  Further, where a doctor is independently aware of a risk, a claim that defendant’s warning as to that risk was inadequate is not actionable.  Id. at *28-29.  The implanting physician in this case testified that he was well aware of the risks of metal-on-metal devices and that while he doesn’t recall reading the Instructions for Use prior to plaintiff’s surgery, his standard practice is to familiarize himself with the information provided by the manufacturer.  Id. at *29-30.  But plaintiff’s surgeon’s testimony didn’t stop there.  He testified:

I make my own decisions. I research it in peer-reviewed literature. I, by and large, don’t rely on representatives of companies to give me information,.. I get my information independently as opposed to from manufacturers, . . .  and I would glean most of my information from the metal-metal world in general.

Id. at *30.  Behold, the independent physician.  Music to our ears.  Frankly, what we all want to hear from our doctors – they put in the time, they do the work, and that’s why we rely on them when they treat us.

Because the overwhelming evidence showed that plaintiff’s surgeon “placed little weight” on the manufacturer’s warnings, plaintiff did not meet her burden of showing that a different warning would have altered her surgeon’s decision-making.  Id. Failure to warn claims dismissed. Plaintiff’s fraudulent concealment claim failed for the same reason.  Plaintiff failed to demonstrate that either she or her surgeon relied on any misleading information from the defendant.  Id. at *31.  Her surgeon’s testimony is noted above.  As for plaintiff, she testified that she did not review any material from the manufacturer before her surgery and that she trusted her surgeon to choose the implant.  Id. at *32.

Plaintiff’s breach of implied warranty claim was dismissed for plaintiff’s failure to provide the notice required under Maryland law.  Plaintiff tried to use her lawsuit as notice, but that’s not allowed under Maryland law.  Id. at *34.   On breach of express warranty, we already know that neither plaintiff or her physician relied on anything from the manufacturer, so plaintiff had no evidence that anything in defendant’s marketing materials or warnings became a “part of the basis of the bargain” to establish an express warranty.

Plaintiff tried to analogize her situation to that of a plaintiff who received a package insert from her pharmacy that advise plaintiff to take her medication with food or milk.  In that case, the pharmacy tried to argue that plaintiff’s breach of express warranty claim should be dismissed because plaintiff was unaware of the warranty at the time of purchase.  The Maryland Court of Appeals rejected that argument finding that an express warranty can be formed after the sale if plaintiff established that she relied on the affirmation in ingesting the medication.  Id. at *37.  But that case does not stand for the proposition that an express warranty is created where a plaintiff never becomes aware of the existence of the warranty.  Plaintiff Morris relied on her surgeon’s expertise which was independently researched.  Therefore, any affirmation by the defendant never became a basis of the bargain.  Id. at *37-38.

Plaintiff also tried to base her breach of express of warranty claim on omissions in the manufacturer’s labeling.  But an express warranty requires an affirmative statement about the product.  That’s the “express” part.  The court was unwilling to entertain a “warranty by omission” claim, calling it a repackaging of plaintiff’s failure to warn claims.  Id. at *38-39.  Express warranty claim dismissed.

Finally, as a matter of law, plaintiff had insufficient evidence to establish a basis for punitive damages by the heightened “clear and convincing” evidence standard.  Plaintiff’s evidence that defendant acted with malice largely amounted to a list of alleged misrepresentations.  But that is just evidence of statements plaintiff believes are false without any demonstration that they actually are or that defendant acted with ill-intent.  Missing from plaintiff’s evidence was anything showing that defendant acted with actual knowledge of the risk or defect.  Id. at *40-42.

Which means, plaintiff’s only surviving claim is for design defect.  And, that is limited only to damages related to plaintiff’s first revision surgery as her expert was excluded on her subsequent injuries.  Id. at *26-27.

It’s not as neatly tied up a tale as we like on summary judgment, but it’s far from a clunker.  Next up might have to be Tana French’s new release, The Searcher.