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Miller v. Depuy Synthes Sales, Inc.

United States District Court, D. Nevada

August 26, 2019




         The 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.


         In 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.)

         The 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. I.)

         About 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.)

         Over 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.)


         The Plaintiff sues contending that a design and manufacturing defect[1] 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 summary judgment.


         The 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. Legal Standard

         Whether 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).

         When a 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.

         A. Analysis

         The 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.

         The 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 ...

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