Hearken to your intestine.  Comply with your instincts.  Belief your instinct.  Nice recommendation in lots of conditions.  Like deciding whether or not to purchase skinny denims or whether or not to purchase your without end house.  Or, when issues appear “off” or really feel “harmful.”  Or, when your physique is attempting to let you know one thing about your well being.  These are all occasions to analyze your emotions a few scenario and permit your “intestine” or “sense” to be your information (or at the very least a again seat driver you don’t ignore).  A basic sense, feeling, or impression, nevertheless, doesn’t get the job performed when you find yourself the medical causation skilled in a fancy medical system case.  Because the courtroom in Hobus v. Howmedica Osteonics Company, 2023 WL 6850144 (D. Ore. Oct. 17, 2023) informed plaintiff when it dismissed his case. 

Plaintiff suffered from again issues practically his complete life that had been exacerbated by a automobile accident in 2014 that led to spinal fusion surgical procedure in 2016 throughout which his surgeon selected to implant an expandable interbody fusion cage system manufactured by the defendant.  Plaintiff alleged that the collapse of the cage brought about him to must endure revision surgical procedure and brought about him to endure persistent ache.  Plaintiff submitted three skilled reviews – a medical causation report from his implanting surgeon, a design defect report from a biomedical engineer, and a damages report.  Defendant moved to exclude all three and for abstract judgment.  The movement on the damages skilled was denied which was of no consequence as a result of the courtroom excluded the medical causation skilled in his entirety and the majority of the engineering opinion. 

As a result of plaintiff’s medical causation skilled was his treating surgeon, the courtroom took its time detailing the surgeon’s opinions within the treating data.  Opinions comparable to:  plaintiff’s MRI exhibits no wire compression or nerve root impingement and “there’s nothing there to account for his [pain];” or based mostly on additional MRIs the surgeon noticed “no apparent issues there or clarification as to why [plaintiff] was having signs.”  Most significantly, when system failure was recognized, his surgeon famous that plaintiff had achieved a “stable fusion” and subsequently the failure was “of questionable significance,” there was nonetheless no neural impingement, and there was a “low” chance that revision surgical procedure would alleviate plaintiff’s ache.  Id. at *2-3. 

Flash ahead to turning into plaintiff’s skilled, and the surgeon’s new opinion was that the collapse of the cage was an “necessary contributing issue” to and “main trigger” of plaintiff’s accidents.  Id. at *5.  Plaintiff’s skilled report offered “little element” concerning how he reached this new conclusion.  And when requested at deposition what his methodology was, the very best he may say was “it’s simply my sense.”  His “intestine says he might need performed higher.”  Confirming he used no methodology, he mentioned “I simply have my instincts as a clinician.”  Id. at *5-6.  So, it was no stretch for the courtroom to conclude that plaintiff’s skilled “utilized no usually accepted methodology in arriving at his medical conclusions.”  Id. at *6.  Scientific expertise could be a foundation for dependable skilled testimony, however solely the place the clinician has “intensive expertise” with the problem on which he’s opining.  Right here, plaintiff’s skilled had just one affected person who skilled a cage collapse – plaintiff.  Id.  The courtroom discovered it “troublesome” to name that ample expertise on which to base his opinion.                

Plaintiff additionally tried to argue that his surgeon relied on his personal medical data to succeed in his conclusions.  As identified above, that’s a stretch too.  However extra importantly, the courtroom acknowledged the final precept that

Though medical data might, in some circumstances, assist a clinician’s total conclusion, they don’t independently confirm the methodology that the clinician used. That’s, whereas a medical document often is the foundation of an skilled’s findings, it affords no clarification for the validity of the skilled’s strategies.

Id.  At most, the surgeon’s data demonstrated a “constant uncertainty” as as to whether the cage collapse was a potential reason behind plaintiff’s accidents. 

Lastly, plaintiff’s skilled failed to handle “the quite a few potential components inflicting plaintiff’s ache.”  Id. at *8.  He deemed the cage collapse was a major causative issue of plaintiff’s ache with out contemplating the affect of different components affecting ache.  “[A]n skilled opinion that wholly fails to think about different causes can’t be a reliably based mostly opinion.”  Id.  Taken collectively, the courtroom had greater than sufficient causes to exclude plaintiff’s medical causation skilled.

Plaintiff’s design defect skilled didn’t fare significantly better.  She concluded that to be secure, defendant’s cage wanted to resist a pressure of two,000 N.  However past that, the courtroom couldn’t conclude that she reliably utilized that opinion to the information of the case.  She checked out six medical failure reviews however performed no inquiry as to why the gadgets failed in these circumstances – she had no info on these sufferers’ ages, weights, exercise ranges, and so forth. to know the quantity of pressure positioned on these gadgets.  She “assumed” these failures had been because of a design defect.  Do assumptions ever actually work out in any context?  Id. at *11.

Plaintiff’s skilled didn’t check the mannequin of cage that was utilized in plaintiff’s surgical procedure.  In different phrases, the skilled didn’t decide whether or not the system may face up to 2,000 N earlier than opining it was faulty for failing to fulfill that customary.  The corporate testing that the skilled did depend on was about “breakage” not system collapse and the skilled supplied no clarification for her “leap” from breakage to break down making her opinion “wholly speculative.”  Id. at *12.  Not solely did the skilled not check the mannequin, she didn’t check the precise system utilized in plaintiff’s surgical procedure.  She may have however determined to not due to the fee.  Failing to take this step that might have offered an goal foundation for her opinion, “deeply undermines the reliability” of her conclusion.  Id.  

The design skilled additionally supplied an opinion on possible different design.  She supplied two—the primary was not another design and the second was not possible.  First, she urged different designs that weren’t expandable.  However that could be a vital design characteristic of defendant’s product that gives utility not accessible in static cages.  Id. at *14.  So, as now we have identified in different circumstances a special product is solely a special product, not another design of the product at concern.  Second, plaintiff’s skilled testified about methods the expandable cage could possibly be improved however had not carried out any evaluation to find out if any of her concepts had been possible.  So, she couldn’t testify on different design.

Lastly, maybe realizing the place issues had been headed along with his medical causation skilled, plaintiff tried to sneak in medical causation by means of his biomedical engineer.  However rendering opinions as to the particular reason behind plaintiff’s accidents goes effectively past her engineering experience.  Her engineering expertise and coaching might permit her to make basic findings concerning what accidents might happen from a cage collapse, however providing opinions that join the cage collapse to plaintiff’s particular accidents crosses into medical causation on which this skilled was not certified to opine.

In the long run, it was the exclusion of plaintiff’s medical causation skilled that led the courtroom of award abstract judgment for the defendant.  Oregon regulation requires skilled testimony the place causation entails advanced medical questions. With no causation skilled, plaintiff couldn’t meet his burden of proof which is only a tad extra onerous than intestine emotions and fundamental instincts.