We spent Sunday evening in the familiar confines of a top-notch local professional theatre. The production was a short (80-minute), two-character play. It was entirely dialogue-driven, so everything the audience learned came out of a character's mouth – there was no action to speak of. It was also perfectly cast, well-acted, and absorbing. By the end of the first 75 minutes, we cared a lot about the characters and were anxious to learn how their story ended. Then came the revelation (residents of our neighborhood who intend to see this play should skip this spoiler) that nothing we had seen and heard had actually happened, at least in anything like the fashion we had come to understand. The (mostly glowing) reviews described this as a "plot twist." This wasn't a plot twist. A plot twist is when something unexpected happens, taking the story in a new direction. This was a gimmick – a dishonest device that relieved the playwright of the burden to maintain plot integrity and create a plausible dramatic arc. And we felt angry and betrayed, and somewhat "fool me twice" duped, as this was the second play in a single year that employed a "Bobby Ewing in the shower" ploy like this one. (Only readers who share our dotage will understand that reference.) We love the theatre more than almost anything, and we are sad to see this sort of trickery gain traction. From now on, we will try to remember that we can't rely on anything that any character says.
Of course, we already knew that about a lot of plaintiffs' mass tort causation experts. Last month, we blogged about the exclusion of one plaintiff's experts in a hernia mesh case. Today's case, like the Bowersock case that was the subject of our last post, is a case that was remanded to its transferor court when the hernia mesh MDL shut down. In Olmo v. Davol, Inc. and C.R. Bard., Inc., Case No. 13-62260-CIV-COHN/SELTZER, United States District Court for the Southern District of Florida, the court recently decided the defendants' motion to exclude the plaintiff's causation expert and their Motion for Summary Judgment. You can see the order here.
In Olmo, the plaintiff's abdominal hernia was repaired with the defendants' Composix Kugel ("CK") hernia repair patch in 2005. In the CK patch, the mesh patch is attached to two memory recoil rings intended to stabilize the device. Six years after her CK patch was implanted, the plaintiff experienced abdominal pain, and her CK patch was explanted and replaced with a different hernia mesh product. The explanting physician observed that a corner of the CK patch had lost fixation and folded under, causing mesh to erode into the plaintiff's bowel. The explanter did not observe buckling in the explanted device, did not determine whether the rings had broken, and did not discern what had caused the mesh to fold. The explanted patch was not preserved and was not photographed before it was discarded.
In her complaint, the plaintiff alleged that a break in one or both of the memory recoil rings in her CK patch caused the mesh to come into contact with her bowel. She submitted the report of a biomedical engineering expert who briefly chimed in with his assent to the plaintiff's theory, stating, "The fact that the mesh had folded such that the porous polypropylene layer contacted internal organs, unequivocally leads to the conclusion that the outer and perhaps also the inner memory recoil rings did not prevent folding, which is only possible subsequent to . . . [ring] breakage . . . ." Order, p. 7. But, as the court noted, the remainder of the expert's report was "devoted almost entirely to explaining why [he] believes that [the defendants'] product testing and design of the CK patch were unsatisfactory," and did not explain "why folding necessarily leads to the conclusion that a ring break occurred." Id. (citation omitted). Nor did the expert clear this up at his deposition. Instead, when asked how he reached his conclusion that a ring had broken, the expert responded that "major folding of the device," such as that described by the plaintiff's explanter, is only possible when a ring breaks. The expert did no tests to confirm his theory. He did no tests to rule out an alternative theory. He was not aware of any scientific studies or literature supporting his conclusion. And he could point to no evidence that "engineering or medical communities would accept the premise that the folding described by [the explanter] is only possible with a ring break." The expert did add that the folding of the plaintiff's patch was greater than he had observed in cases in which a ring break was documented, but he couldn't identify any of those cases. Citing Joiner, the court concluded that there was "too great an analytical gap" between the data on which the expert relied and his "broken ring" conclusion, and excluded the expert's testimony in its entirety.
With no admissible evidence of medical causation, the plaintiff could not satisfy her burden of proof of her warnings and design defect claims, and her remaining claims – punitive damages and loss of consortium – could not survive alone. So the court granted summary judgment and dismissed all of the plaintiff's claims with prejudice.
We love this. You have heard us rant and rave enough times about mass tort plaintiffs who get money for claims they can't prove. It was nice to see aggressive lawyering and a brave and sensible judge lock the vault with this plaintiff's open hand safely outside. And, just maybe, plaintiff lawyers will someday think twice about relying on experts who skip the step of employing reliable (or any) methodology. We can always hope. Just as we will the next time the house lights dim, the curtain opens, and a theatrical journey begins.
This article is presented for informational purposes only and is not intended to constitute legal advice.
