In Witt v. Stryker Corp., 2016 WL 1583816 (11th Cir. Apr. 20, 2016), a Daubert decision in a Stryker knee replacement case, even ipse dixit seemed a bit generous. Roughly translated, ipse dixit means “he himself said it.” But it’s not clear that the expert in Witt said “it.” His report didn’t seem to venture an opinion at all, no less one that came from applying a scientific process to true and accurate data. It offered a feeling, seemingly a timid one hoping not to be noticed: “I feel that the mechanical failure of the EIUS [the knee replacement system] Stryker components was the competent producing cause for the need for surgery on 04/17/2009 and for a revision arthroplasty to a total knee replacement.” Id. at *5 (emphasis added). In case you thought this was just careless terminology, he did it again: “I feel that the mechanical failure of the EIUS System installed on 04/18/2008 was a competent cause for the need for subsequent surgeries on 03/30/2011 and on 01/17/2012.” Id. (emphasis added).
We haven’t studied the case law on feelings. But we are confident that, if it exists, it won’t be favorable to this expert.
Things grew more timid from there. At has deposition, it wasn’t even clear what the expert was feeling:
Indeed, he explicitly disclaimed having any expert opinion about why the EIUS design was defective. Besides broadly referencing the likelihood that the device suffered some mechanical failure, Dr. Lubliner offered no explanation for why the defect was one of design and not of manufacture.
Id. (emphasis added). Oof.Continue Reading Not Hooked on a Feeling, the Eleventh Circuit Upholds Exclusion of Expert