Duh. We apologize for the depth of our profundity, but there are some legal principles we think are really obvious. So obvious, in fact, that we might respond to question about these principles with this most dismissive of (clean) interjections. (We were somewhat surprised to learn from the interwebs that duh was supposedly first used in 1943 as a demeaning imitation of an unintelligent person and sometime later as an interjection. We cannot fathom how deprived tweens and teens of past generations were by their lack of duh as a standalone comeback, particularly to an older person.) The issue teed up in Campbell v. Depuy Orthopaedics, Inc., No. 3:23-cv-00029, 2023 U.S. Dist. LEXIS 31015 (M.D. Tenn. Feb. 24, 2023), drew this response from us. Considering the “ink spilled” on this issue in this more than a decade-old case made us shake our heads.
The issue at hand is whether a plaintiff should win partial summary judgment on an element of her case as to which she bears the burden of proof—in this case, medical causation—when the defendant does not have an expert on that element. Of course not. Pattern jury instructions often include some version of the phrase “the defendant does not have to prove anything.” The Federal Rules for Civil Procedure include a provision for judgment as a matter of law, colloquially known as directed verdict. Defense trial lawyers with a lot of, er, gumption have been known to rest at the end of plaintiff’s case without presenting any witnesses. So, does a defendant have to present witnesses, expert or otherwise, on every issue as to which plaintiff bears the burden of proof? Does something about Fed. R. Civ. P. 56 change the dynamic so an unopposed expert turns into partial summary judgment for the plaintiff? No and no.
Frankly, the more interesting flip side to this coin is when the plaintiff files a “reverse Daubert” motion on the defense medical causation expert or otherwise seeks to require that the defense expert offer an opinion to a reasonable degree of medical probability/certainty as to what other than the defendant’s product caused the plaintiff’s alleged injuries. The First Circuit addressed the latter issue well in Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), and courts usually get both of these issues right. Taking this all a bit further (or nerdier), the burden on the plaintiff to prove her case by a preponderance of evidence connects to the requirement from Daubert II and Havner that epidemiologic studies supporting general causation must have statistically significant relative risk (or odds ratios) greater than 2.0. A relative risk of exactly 2.0 indicates that half of the cases in a population will be due to the exposure and half will not. But we digress from our digression.
The presented facts and procedural history of Campbell are simple. Plaintiff had a hip implant in 2009, had pain beginning in 2011 that led to a surgical intervention, sued over alleged metallosis, had the case docketed in an MDL for a long time, relied on the implanting surgeon for her causation case, moved for partial summary judgment on causation when the defendant did not name an expert on causation, and had her case remanded from the MDL a while later. It was unclear whether the defendant chose not to name an expert like an orthopedic surgeon to address case-specific medical causation or there was the sort of oversight by the defendant of the type that plaintiffs are permitted to wiggle out of far too often. (We perused the docket for some more information, which we will discuss later. The MDL was the Pinnacle Hip MDL, notorious for a very large verdict that was reversed by the Fifth Circuit.) In any event, the remand court’s consideration of the plaintiff’s motion was mercifully succinct.
Citing a range of Tennessee cases, the Campbell court rejected plaintiff’s argument with “it is only the Plaintiffs who are required to present expert testimony to establish causation in cases where the plaintiff has suffered a complex medical injury.” 2023 U.S. Dist. LEXIS 31015, *5-6. Plaintiff tried to rely on two federal cases applying Tennessee substantive law to grant a defendant’s motion for summary judgment because plaintiff did not have the requisite expert testimony, in one, and to deny a plaintiff’s motion “seeking relief from its obligation to submit case-specific medical expert testimony to prove causation of medical injuries,” in the other. Id. at *6-7. The court was having none of it. More generally, a defendant can rely on the jury to reject plaintiff’s expert’s testimony, especially when aided by effective cross-examination. Moreover, the implanting surgeon who tried to offer expert opinions for plaintiff noted “no significant metallosis” in the report for his revision surgery and otherwise lacked facts in the case supporting his opinion. Id. at *9-10. So, summary judgment was rightly denied.
That is all well and good, but we do have a gripe. We have less than complete information on the history of the Pinnacle MDL and this particular case, but it looks like a poster child for some of the problems with MDLs. The case was filed back on October 13, 2011, sat around inactive for most of the next eleven years, and ended up back in the local federal court on January 19, 2023, with plaintiff’s motion for partial summary judgment pending. In the MDL, after plaintiff dropped out of the court’s mediation program, there was a flurry of activity starting with a show cause order on plaintiff’s failure to prosecute and ending with a suggestion of remand on December 30, 2022. According to the JPML website, the Pinnacle MDL opened in May 2011, had about 10,500 cases in it, and is now down to 0 cases (but has not yet been terminated). That history, even without the notoriety to which we alluded previously, does not speak to the “the just and efficient conduct of such actions” in § 1407. By contrast, the remand court ruled on a pending motion for summary judgment within five weeks of transfer. That is efficient no matter how obvious the outcome was.