This will be the last post we write for a while, as we are about to head to trial in a product liability case. The plaintiff says that a medical device has caused her to suffer pain and other injuries. What else would you expect? Her case has gotten as far as it has because an expert will come to court and act as a credentialed and highly-paid oath-helper. He will say that the device is, indeed, the culprit. Again, what else would you expect? But we think his opinions lack support and don’t quite get to where they need to go. For that reason, we will keep a copy of Gottlieb v. C.R. Bard, Inc., 2021 U.S. Dist. LEXIS 141280 (E.D. Va. July 31, 2021), near at hand.

Gottlieb was about an implanted IVC filter. (Our case also involves an implant, but not an IVC filter.). The IVC filter fractured and migrated. The plaintiff in Gottlieb alleged that such fracturing/migration of the filter caused her to suffer from anxiety, abdominal pain, chest pain, and shortness of breath. Her complaint included the usual catalogue of causes of action, including negligent design, failure to warn, breach of warranty, and misrepresentation. The plaintiff sought compensatory and punitive damages. The defendant filed a motion for summary judgment, with the primary argument being that the plaintiff could not prove proximate causation.

It is clear under the law of Virginia (and every other place we’ve litigated) that a plaintiff needs a medical expert to establish medical causation. In Gottlieb, the plaintiff had such an expert. The issue was whether that expert said what needed to be said. To be sure, the medical expert pronounced that all of his opinions were held to a reasonable degree of medical certainty. The necessary incantation was uttered. There also does not seem to be any deficiency in the expert’s qualifications. He was a doctor, not a quack. He was apparently even a doctor in the right specialty. So far so good.

The plaintiff medical expert looked at the appropriate medical records. He testified that the IVC filter fractured and migrated just a bit north of the retrieval hook. Okay, then what? Herein lies the problem with the expert’s opinions. His only real opinion regarding the plaintiff’s alleged injuries is that she “will need to have close clinical follow-up.” He does not specifically tie the alleged injuries (anxiety, pain, shortness of breath) to the fractured filter. At most, the expert offered “speculative testimony regarding the potential ramifications of Plaintiff’s filter’s movement” — which the court held was “insufficient.”

Perhaps the plaintiff medical expert in Gottlieb should be congratulated for not overextending. But we doubt that the plaintiff or her lawyers are offering such congratulations, because the testamentary gap prompted the court to grant summary judgment in favor of the defendant: “Here, Plaintiff offers no expert testimony that her IVC filter caused her injuries, and is therefore unable to create a jury issue as to causation. Without any expert testimony that the complications associated with her IVC filter caused her alleged injuries, Plaintiff’s claims must fail.”