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We think Spring cleaning is all well and good, but our most frantic clean-up efforts take place at year end.  Scrolling through our inbox in December, we always find cases from earlier in the year that somehow got lost.  None of your intrepid DDL bloggers selected these cases for posting, perhaps because the cases were too ugly for the defense, too dull, or, most likely, too long.  But Kiser v. Terumo Medical Corp., 2023 WL 4778447 (E.D. Tenn. July 26, 2023), falls into none of those categories. It is a complete defense win excluding a plaintiff-side expert and granting summary judgment.  It is reasonably interesting and reasonably concise.  The Kiser case involves a claim of personal injuries allegedly caused by a vascular closure device used after heart catheterization.  The device had become dislodged and then trapped in the plaintiff’s femoral artery.  The device occluded blood flow and had to be removed with a more invasive surgical procedure. The plaintiff claimed that she suffered continuing complications from the device surgery and explantation, including leg pain and restricted movement.  The plaintiff alleged permanent injury.  Notably, the plaintiff’s surgeon had used the device “at least a thousand times.”

The plaintiff brought claims under the Tennessee Products Liability Act for strict liability, negligence, punitive damages, compensatory damages, and loss of consortium.  The device manufacturer moved for summary judgment. The defendant also moved to exclude the opinions of the plaintiff’s only expert, a non-MD materials specialist.  The Kiser court began by analyzing whether the plaintiff’s expert passed muster under Federal Rules of Evidence 702 and 703.  The No answer to that question resulted in a Yes answer to the defendant’s request for summary judgment.

Tennessee, like most states, requires expert testimony to establish liability in cases alleging manufacturing and design defects.  The plaintiff expert in Kiser asserted that she had measured the device’s suture and found deformities.  The expert report included (as does the Kiser opinion) a cellphone photograph of a portion of the device next to a ruler.  The court considered the photograph and the expert’s opinions carefully, and interpreted the photograph and expert’s measurements to mean one of two things: either the polymer material measured by the expert was not the correct item (the suture), or the “photographic evidence forecloses any possibility that her measurements were accurate.”   Either way, the methodology was unreliable and flunks Rule 702.  In the end, the photograph “firmly convinces the Court that whatever [the plaintiff expert] measured was not the suture.”  Naturally, the plaintiff argued that whether the plaintiff expert actually measured the suture was “a question of weight for the jury to decide rather than a question of admissibility.”  Ah yes, that old standby always mouthed by plaintiff lawyers when their experts’ opinions turn out to be mush: everything goes to weight, not admissibility.  But if the plaintiff expert measured the wrong piece, then any opinions about it being deformed cannot possibly pertain to something she did not measure at all.  Her opinions about a piece she never actually measured necessarily are without basis, speculative, and thus inadmissible.  Even if she happened to measure the right thing, the expert’s crude measurement methods, involving a standard ruler and a cell-phone picture, were not reliable. We do not know whether the device suture was deformed, but we do know that the plaintiff expert’s opinions were.  Adios, expert.

Because the plaintiff lacked any admissible expert testimony on a supposed manufacturing or design defect, the Kiser court granted summary judgment in favor of the defendant. Neither injury nor a product malfunction alone create an inference of defect.  Adios, entire case – with prejudice.