Nine expert witness challenges ruled upon in Wisconsin

The Wisconsin District Court recently came across nine lengthy motions in limine filed by the Defendants in the case of Stevens v. Stryker Corp. – all challenging the admissibility of the Plaintiff’s expert witnesses. The cause of action arose when a pain pump manufactured by Defendants Stryker Corporation and Stryker Sales Corporation caused Plaintiff Amy Marie Stevens to suffer from a condition called chondrolysis, involving “severe cartilage loss.”

The causation expert testimonies

Under Wisconsin negligence law, a Plaintiff must show that Defendant’s conduct was a “substantial factor” in producing Plaintiff’s injury. In this case, Plaintiff named four experts to help prove this element of her claim:

(1) Brian Fukushima, a medical expert witness, who was to testify that Defendant’s pain pump caused her chondrolysis (specific causation)

(2) Peter Kurzweil, another medical expert witness, who was to testify that pain pumps can cause chondrolysis (general causation)

(3) Sander Greenland, an epidemiologist, who was to “help the jury understand the significance of the mounting evidence of general causation”; and

(4) Martin Wells, a biostatistics expert, who was to provide a statistical analysis in an attempt to show a causal relationship between pain pumps and chondrolysis.

Defendants filed motions to exclude all, primarily because they did not address the particular type of pain pump at issue in this case, and other secondary reasons.

(a) Brian Fukushima

Commenting on Fukushima’s usage of “differential etiology” the Wisconsin District Court relied on Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 433–34 (7th Cir.2013) where “the court of appeals recognized this method of … differential etiology as a generally accepted means for evaluating the cause of a plaintiff’s injury” and held there was no reason for Plaintiff to adduce other evidence that a pain pump with the same characteristics as Defendant’s could cause chondrolysis.

Rejecting Defendant’s other claims, the Court then went on to add that it was not necessary for the expert to provide opinions about both specific and general causation and that although it was true that an expert must first “rule in” a particular cause before “ruling out” other causes, the testimony of the other experts about the link between pain pumps and chondrolysis generally was sufficient for that purpose.

(b) Kurzweil, Wells and Greenland

With respect to the opinions of Kurzweil, Wells and Greenland, Defendants claimed that the experts’ opinions were inherently unreliable because they were based on inadmissible case reports. The Court pointed out that Defendants’ only support for the claim was quotations from district court opinions taken out of context, whereas in reality, many courts have held just the opposite. Besides, it was well established that an opinion may be admissible even if it did not establish a single cause with certainty or even if there was contrary authority.

An objection common to two of the experts (Kurzweil and Wells) was that each of them relied on animal studies without providing a basis for concluding that conclusions of the same may be applied to humans. Although Plaintiff tried proving that animal cartilage was similar to human cartilage, she did not cite any passages from the experts’ reports which explained why it was reasonable to rely on the animal studies for the purpose of determining causation in humans. Exclaiming “lawyer argument cannot fill gaps left by the experts”, the Court granted Defendants’ motion to exclude those testimonies on animal studies.

The orthopedic surgery expert testimony

Stephen Trippel was retained by Plaintiff to testify about the state of scientific knowledge as of the time of Plaintiff’s surgery. Defendants argued that Trippel should be precluded from offering opinions about the following issues: (1) safety testing that Defendants should have performed; (2) the lack of information available in 2004 about the safety of Defendants’ products; and (3) medical literature available in 2004 that would have put Defendants on notice that their product was dangerous. Plaintiff did not oppose the first issue on safety testing, so the Court excluded that part of the testimony but denied Defendant’s motions on the other two issues.

The standard of care expert testimonies

Peggy Pence, a regulatory expert and a biomedical engineering expert were retained by the Plaintiff to testify on standard of care issues.

Defendants argued that Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), “preempted” the experts’ opinions because those were about compliance with regulations by the Food and Drug Administration. The Court disagreed, saying that went “well beyond the holding in that case” and “the question in this case is not whether defendants violated federal regulations, but whether they were negligent under Wisconsin law. Thus, the testimony of a standard of care expert for either side should address what a reasonable manufacturer would do.”

Amongst Defendants’ other objections, the Court accepted the point that simply writing down a list of regulations and concluding that Defendants had violated the same did not make the biomechanical engineer a regulatory expert, but even if he were, Plaintiff failed to how his testimony would be helpful to the jury. Therefore his testimony was liable to be excluded.

The damages expert testimonies

A vocational rehabilitation expert witness and a finance expert witness were retained by Plaintiff as damages experts in this case.

Defendant challenged the vocational rehabilitation expert’s opinions that (1) Plaintiff was a “disabled worker” with a reduced earning capacity; (2) she would have to retire at age 50; and (3) she would require household assistance. The Court agreed, saying the fact that Plaintiff was working now with no reduction in her hours or responsibilities undermined most of the expert’s opinions. Plaintiff was free to seek damages for pain and suffering, but she could not be compensated for lost wages if she was working the same job and the same hours she was working before her injury. An expert opinion supported by nothing but theoretical possibility could not be admitted, especially when Plaintiff points to no evidence that her job performance had suffered, that her employer had questioned her ability to do her job or that she had any plans to limit her work in the future.

Upon finding that the finance expert’s opinions were based on the vocational rehabilitation expert’s reports, the Court granted Defendants’ motion to exclude him as well.

Verdict

Commenting that most of Defendant’s objections were more appropriately addressed through cross examination rather than by excluding the experts, the Court decided Defendants’ motions to exclude in the following manner -

Fukushima and Greenland: Denied

Kurzwell and Wells: Granted on animal studies issue, denied in all others

Trippel: Granted on safety testing issue, denied in all others

Pence: Denied

Biomedical engineering expert: Granted

Vocational rehabilitation expert witness and finance expert witness: Granted

**Written for the web by the EWG Editorial Team

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