United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
Plaintiff brings five causes of action in a products
liability case against the manufacturer of an orthopedic
implant. He alleges a defect in the device caused him severe
medical complications. However, the Plaintiff cannot show
that the device failed to function as expected- a fatal flaw
for all of his claims. Consequently, the Court grants summary
judgment in the Defendant's favor and closes the case.
2013, the Plaintiff fractured two bones in his lower right
leg. (Mot. Summ. J. Ex. A at 1, ECF No. 54.) To treat the
injury, Dr. Christopher Dolan surgically installed a Synthes
Locking System, a prescription medical device, to align the
broken bones. (Mot. Summ. J. Ex. B. at 2-3.) The Defendant
manufactures and distributes the Synthes Locking System.
(Mot. Summ. J. at 2:12.)
Defendant included package inserts that warned that the
device could fail if a patient bears weight on it, if the
healing process is delayed, or if it is subjected to muscular
forces from movement or other repeated stresses. (Mot. Summ.
J. Ex. J.) Dr. Dolan provided the Plaintiff with a page of
instructions consistent with the warning. (Mot. Summ. J. Ex.
ten weeks later, the Plaintiff returned to Dr. Dolan
complaining of pain in his right leg. (Mot. Summ. J. Ex. M.
at 1.) According to his report, Dr. Dolan found that there
was a delayed union of the bones and that the device was
broken, because the Plaintiff was weight bearing.
(Id.) The Plaintiff maintains that he followed the
instructions and did not bear weight on his leg. (Opp'n
Mot. Summ. J. Ex. 2 at ¶ 8, ECF No. 63.) In an
affidavit, the Plaintiff's supervisor contends that he
routinely witnessed the Plaintiff use a knee scooter.
(Opp'n Mot. Summ. J. Ex. 3 at ¶¶ 6-7.)
the next year, the Plaintiff's condition worsened, and
Dr. Dolan transferred him to an associate, Dr. Aaron Dickens.
(Mot. Summ. J. Ex. X at 1-2.) In another surgery, Dr. Dickens
replaced the original implant with another Synthes Locking
System, which had a more robust plate. (Mot. Summ. J. Ex. Z.)
The second device also broke four months later. (Mot. Summ.
J. Ex. VV.)
Plaintiff sues contending that a design and manufacturing
defect in the initial implant caused his medical
complications. Under Nevada law, the Plaintiff claims that
this defect gives rise to liability under strict and
negligent products liability and breaches of an implied
warranty of merchantability, an implied warranty of fitness
for a particular purpose, and an express warranty. The
Plaintiff retained an expert metallurgist, and the Defendant
called the treating physicians to testify as non-retained
experts. Each party has filed a motion in limine to exclude
the other's experts, and the Defendant filed a motion for
PLAINTIFF'S MOTION IN LIMINE
Court preliminarily addresses the Plaintiff's motion as
this affects the universe of evidence for summary judgment.
The Plaintiff argues that his treating physicians should be
excluded from testifying about the cause of the device's
failure, because they are retained experts without the
necessary disclosures. The Court disagrees; the physicians
are non-retained experts.
a witness qualifies as an expert, is a question left to a
court's discretion. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). Under Federal Rule
of Evidence 702, expertise must be helpful and based on
“scientific, technical, or other specialized
knowledge.” Medical expert opinion testimony is based
on specialized knowledge, and “a trial court should
admit medical expert testimony if physicians would accept it
as useful and reliable.” United States v.
Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2006).
party calls a witness, the party must make the necessary
disclosures under Federal Rule of Civil Procedure 26(a); if a
party fails to properly disclose, then a court must exclude
the testimony “unless the failure was substantially
justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Under
Rule 26(a)(2)(B), a party who “retain[s] or specially
employ[s] [a witness] to provide expert testimony” must
provide, among other things, a “complete statement of
all opinions the witness will express and the basis and
reasons for them.” However, when a party calls an
expert as a percipient witness, then the party need only
provide the subject matter and a summary of the testimony.
Fed.R.Civ.P. 26(a)(2)(C). The Ninth Circuit held that a
treating physician is not a retained expert but rather
qualifies as a percipient witness when “his opinions
were formed during the course of treatment.”
Goodman v. Staples the Office Superstore, LLC, 644
F.3d 817, 826 (9th Cir. 2011). However, if the physician
reviews material outside the scope of his treatment to form
the basis of his testimony, then the physician must provide a
report under Rule 26(a)(2)(B). Id.
Court holds that Drs. Dolan and Dickens are non-retained
experts. They are both experts because of their degrees,
training, experience, and their expertise using the Synthes
Locking System. Dr. Dolan has more than fifteen years of
experience in orthopedic surgery and is “very
comfortable” using the device. (Opp'n Mot. Lim. Ex.
C at 82:12-19, 19:24-20:7, ECF No. 61.) Similarly, Dr.
Dickens has over ten years of experience and has used the
device “dozens of times.” (Opp'n Mot. Lim.
Ex. F at 125:14-23.) Thus, they are experts.
Court also holds that the Defendant did not retain Drs. Dolan
and Dickens. The Plaintiff relies on Goodman to say
that the Ninth Circuit held that treating physicians should
be considered retained experts whenever they rely on their
expertise. However, this is a misreading of the opinion.
There, the court of appeals only held that treating
physicians should be considered retained or specially
employed to provide expert testimony when they created their
views after their courses of treatment. Goodman, 644
F.3d at 826. The Ninth Circuit affirmed the district
court's conclusion that detailed reports ...