We expect Spring cleansing is all nicely and good, however our most frantic clean-up efforts happen at yr finish.  Scrolling by means of our inbox in December, we at all times discover instances from earlier within the yr that in some way bought misplaced.  None of your intrepid DDL bloggers chosen these instances for posting, maybe as a result of the instances have been too ugly for the protection, too uninteresting, or, more than likely, too lengthy.  However Kiser v. Terumo Medical Corp., 2023 WL 4778447 (E.D. Tenn. July 26, 2023), falls into none of these classes. It’s a full protection win excluding a plaintiff-side professional and granting abstract judgment.  It’s fairly fascinating and fairly concise.  The Kiser case includes a declare of private accidents allegedly attributable to a vascular closure gadget used after coronary heart catheterization.  The gadget had turn out to be dislodged after which trapped within the plaintiff’s femoral artery.  The gadget occluded blood stream and needed to be eliminated with a extra invasive surgical process. The plaintiff claimed that she suffered persevering with problems from the gadget surgical procedure and explantation, together with leg ache and restricted motion.  The plaintiff alleged everlasting damage.  Notably, the plaintiff’s surgeon had used the gadget “at the least a thousand occasions.”

The plaintiff introduced claims beneath the Tennessee Merchandise Legal responsibility Act for strict legal responsibility, negligence, punitive damages, compensatory damages, and lack of consortium.  The gadget producer moved for abstract judgment. The defendant additionally moved to exclude the opinions of the plaintiff’s solely professional, a non-MD supplies specialist.  The Kiser courtroom started by analyzing whether or not the plaintiff’s professional handed muster beneath Federal Guidelines of Proof 702 and 703.  The No reply to that query resulted in a Sure reply to the defendant’s request for abstract judgment.

Tennessee, like most states, requires professional testimony to determine legal responsibility in instances alleging manufacturing and design defects.  The plaintiff professional in Kiser asserted that she had measured the gadget’s suture and located deformities.  The professional report included (as does the Kiser opinion) a cellphone {photograph} of a portion of the gadget subsequent to a ruler.  The courtroom thought-about the {photograph} and the professional’s opinions rigorously, and interpreted the {photograph} and professional’s measurements to imply considered one of two issues: both the polymer materials measured by the professional was not the proper merchandise (the suture), or the “photographic proof forecloses any chance that her measurements have been correct.”   Both approach, the methodology was unreliable and flunks Rule 702.  In the long run, the {photograph} “firmly convinces the Court docket that no matter [the plaintiff expert] measured was not the suture.”  Naturally, the plaintiff argued that whether or not the plaintiff professional really measured the suture was “a query of weight for the jury to resolve fairly than a query of admissibility.”  Ah sure, that previous standby at all times mouthed by plaintiff legal professionals when their specialists’ opinions become mush: every thing goes to weight, not admissibility.  But when the plaintiff professional measured the incorrect piece, then any opinions about it being deformed can’t presumably pertain to one thing she didn’t measure in any respect.  Her opinions a couple of piece she by no means really measured essentially are with out foundation, speculative, and thus inadmissible.  Even when she occurred to measure the proper factor, the professional’s crude measurement strategies, involving a regular ruler and a cell-phone image, weren’t dependable. We have no idea whether or not the gadget suture was deformed, however we do know that the plaintiff professional’s opinions have been.  Adios, professional.

As a result of the plaintiff lacked any admissible professional testimony on a supposed manufacturing or design defect, the Kiser courtroom granted abstract judgment in favor of the defendant. Neither damage nor a product malfunction alone create an inference of defect.  Adios, complete case – with prejudice.