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Local counsel in one of our cases made it clear that unless we wanted to broadcast that we were from out of state, we needed to pronounce Oregon as “Or-gun” not “Or-ah-gone”, and we have tried to remember that tip ever since.  But today’s District of Oregon case, Glover v. Avanos Med., Inc., No. 3:20-cv-01452-AR, 2024 U.S. Dist. LEXIS 66853, 2024 WL 1530685 (D. Or. Mar. 19, 2024), involves a Rule 702 expert exclusion and accompanying grant of summary judgment, so we will revert to our former mispronouncing ways because this case is gone (very bad sort-of pun regrettably intended).

Or rather, Glover will be gone soon.  Glover involves a federal Magistrate Judge’s Report & Recommendation, but the time has passed for objections and none are noted on the docket, so a final dismissal should be forthcoming.

The facts of Glover are undeniably tragic, but tragic outcomes do not necessarily signify liability.  The plaintiff filed suit following the death of her husband from intra-abdominal sepsis and a perforated ulcer.  Mr. Glover had been in a persistent vegetative state for decades, and towards the end of his life reportedly developed problems with his gastrostomy tube, and this led to a claim for strict liability manufacturing defect against the gastrostomy tube manufacturer.

The first issue in the Glover opinion was whether the testimony of Plaintiff’s mechanical engineering expert was admissible.  As you no doubt know, with the amendments effective December 1, 2023, Rule 702 now reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Without specifically calling out the Rule 702 amendments, the Glover Magistrate Judge got it mostly right.  The opinion recognized the proponent of the expert testimony has the burden of establishing admissibility by a “preponderance of the evidence”; that the trial court is a gatekeeper; and the relevant considerations. 

We could have done without Glover’s dated quote from Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010), however.  Glover, 2024 U.S. Dist. LEXIS 66853 at *6 (“[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion”) (quoting Primiano, 598 F.3d at 564).  It seems to us that after the Rule 702 amendments, “shaky” evidence should be excluded, not admitted, and all of us—courts and lawyers alike—should look carefully at pre-December 2023 statements regarding the meaning of Daubert and expert admissibility before we quote them in our opinions or briefs.

Plaintiff’s expert had the necessary qualifications in mechanical engineering, but the problem was the (un)reliability of his opinions, with his expert report “best described as anemic in its conclusions and the bases for those conclusions.”  Glover, 2024 U.S. Dist. LEXIS 66853, at *7.  (The first hint?  The 10-page report consisted of seven pages of photographs, one page on the expert’s background, and one signature page.)

The one page of seeming substance discussed the expert’s visual inspection of the explanted feeding tube under a microscope with 10X magnification, his statement that he observed “an initial failure along an axial line in the cuff”; his opinions that such failure was “indicative of a weakness or defect in the wall of the balloon cuff from manufacture”; and his opinion that to a “reasonable degree of scientific and engineering certainty” the defect cause a loss of the seal between the tube and the stomach wall, resulting in leakage of stomach contents, tissue damage, and ultimately the death of Mr. Glover.

There are some mighty big assumptions and leaps in there, and you undoubtedly noticed the opinion veers from engineering into medical causation. 

Then, in deposition, the expert admitted he never reviewed the design specifications, did not determine the general causes of feeding tube ruptures, did not test either the explanted feeding tube or exemplars, did not rely on any studies or literature, had no prior experience with feeding tube design or testing, and did not rule out other causes of tube rupture. 

In short, “the sum total of the methodology used by [the expert] to form his opinion concerning a manufacturing defect was his ‘visual inspection, visual observation, and [his] engineering and consulting experience’”—which was insufficient, even without the expert’s own admission admitted that the cause of a tube rupture could not be determined with only a visual inspection. 

Glover, 2024 U.S. Dist. LEXIS 66853, at *10-*11, *14.

Under Rule 702, old or new, the engineering opinions were unreliable, and the expert wasn’t qualified to opine on medical causation at all.

Having excluded the expert testimony, the Court turned to the manufacturer’s motion for summary judgment.  Summary judgment motions based on an excluded expert usually are a simple page or two with authorities outlining the elements of the product liability claim and why admissible expert testimony on product defect and medical causation is required for the plaintiff’s case to get to a jury.

But because this is Oregon, getting there takes a few steps.

Oregon “product liability” claims are statutorily defined.  See Or. Rev. Stat. § 30.900-30.920; see also Parkinson v. Novartis Pharma. Corp., 5 F Supp 3d 1265, 1270 (D. Or. 2014) (“all claims alleging personal injury related to a product “must be brought pursuant to Oregon’s product-liability statutes §§ 30.900–30.920.”). 

Those statutes start out in a generally-familiar way:  Liability may be imposed on a “seller or lessor engaged in the business of selling or leasing such a product” “for physical harm” caused by the sale or lease of “any product in a defective condition” that is “unreasonably dangerous to the user or consumer” and that reaches “the user or consumer without substantial change in the condition in which it is sold or leased.” Or. Rev. Stat. § 30.920(1).  

But then things go a little wonky.  First, the manufacture/design/failure to warn categories get blurred a bit:  “Unreasonably dangerous defects in products come from two principal sources: (1) mismanufacture and (2) faulty design, including failure to warn as a design defect.”  Harris v. Nw. Nat. Gas Co., 284 Or. 571, 576 (1978).

Next, Oregon courts have interpreted Or. Rev. Stat. § 30.920 as “codifying the ‘consumer expectations’ test for determining when a product is defective.”  Glover, 2024 U.S. Dist. LEXIS 66853, at *20-21 (citing McCathern v. Toyota Motor Corp., 332 Or. 59, 79 (2001)). 

Consumer expectations tests generally do not require expert testimony, but fortunately, here is where Oregon law gets back on the right track, more or less:

Although the extent of a products dangerousness is ordinarily a factual question to be determined by the jury, the trial court must still ensure that the evidence is sufficient for the jury to make an informed decision about what ordinary consumers expect.  Because ORS § 30.910 creates a rebuttable presumption that products are not defective, a plaintiff may not rely on the bare assertion of a defect from which a jury may infer unreasonable dangerousness; rather, a party must affirmatively put forth some evidence on the issue of dangerousness before the issue may properly be submitted to a jury.

Glover, 2024 U.S. Dist. LEXIS 66853, at *21 (emphasis added; internal citations and quotes omitted).

Fortunately, where—as with complex medical devices—”the products or factual circumstances may be beyond average jurors’ expectations” then “additional evidence about the ordinary consumer’s expectation is necessary.”  Id. at 21.  And where—as with complex medical questions—jurors would have no basis for deciding causation without testimony showing “that there is a reasonable medical probability that the injuries were caused by the defendant,” then expert testimony on the issue is required.  Id. at 22.

So in the end, because the Glover Magistrate Judge had excluded Plaintiff’s expert, the Court also was able to conclude she lacked the necessary “affirmative evidence” showing the explanted tube was defective, and had “no evidence on consumer expectations,” namely the requisite expert testimony on the complex medical causation question.