7th Circuit Reverses Verdict Against Orthopedic Implant Manufacturer Based on Unreliable Testimony re Causation and Defect

The Seventh Circuit has published an opinion reversing a $650k plaintiffs' verdict in a suit against the manufacturer of a failed prosthetic knee. The trial court did not articulate a sufficient reliability analysis of the plaintiff's expert testimony, the panel says. In any event, it says, the testimony was inadmissible as a matter of law. See Fuesting v. Zimmer, Inc., No. 04-2158 (7th Cir. Aug. 30, 2005) (Flaum, Evans, & Williams, JJ.).

Sensing, perhaps, that their expert's opinion might profit from some bolstering, plaintiff's counsel in Fuesting opened their appellate brief with a five-page discussion of published literature from medical journals to support their expert's theory -- viz., that implant sterilization by gamma irradiation in air causes ultra high molecular weight polyethylene components to oxidize. The Seventh Circuit's opinion concedes that the cited literature shows "some modicum of acceptance" for the expert's theory, but strikes this portion of plaintiffs' appellate brief nevertheless, because the cited articles (it says) were not part of the trial record. Plaintiffs' counsel did quote them in cross-examining defendant's expert witness. But the quoted portions "almost invariably met with [the defense expert's] disapproval." According to the panel, the conditions for the hearsay exception in Fed. R. Evid. 803(18) were therefore unsatisfied. (Our own understanding is that Rule 803(18) depends only on the expert's agreement that the learned treatise or periodical is authoritative, and not on the expert's agreement with the particular content on which the cross-examiner seeks to rely. But that's an issue for another day.)

The remainder of the Seventh Circuit's opinion is decidedly on the interventionist end of the appellate spectrum. It faults the district court for a desultory reliability analysis that merely referred to the reasoning offered by plaintiff's expert at deposition, rather than reciting his reasoning anew or addressing defendants' objections specifically. But it does not remand with instructions for the district court to conduct a more thorough reliability analysis, nor show any explicit deference to the reliability findings that the district court actually made. It faults plaintiff's expert for not citing or personally conducting tests or experiments, complaining that the expert seeks "insulation of his theory from the dispassionate crucible" (whatever "the dispassionate crucible" may be), without however adverting to the panel's earlier acknowledgment that plaintiff's theory does enjoy some measure of support in the literature. It criticizes plaintiff's expert for developing his opinion for litigation purposes -- without discussing whether it was his specific opinion, or the underlying theory on which it was based, that was crafted for the occasion. And it conducts an unusually searching appellate analysis of "analytical gaps":

Rather than relying upon tests, experiments or studies, [plaintiff's expert] attributed his opinion to "basic polymer science," which, even [defendant] concedes, reveals that gamma irradiation of polyethylene can create free radicals that bond with oxygen, thereby decreasing its molecular weight by keeping molecular chains from reforming, increasing its density, and making the polyethylene susceptible to delamination. The problem here is that [plaintiff's expert] did not bridge the analytical gap between these basic principles and his complex conclusions. For example, he did not specify, with respect to [plaintiff's] implant in particular, what quantum of each variable is required to set this agreed upon chain reaction in motion. How much radiation does it take to cause oxidation, and to what degree? How much oxidation must occur to render polyethylene more susceptible to delamination? And once polyethylene becomes more susceptible to delamination, how then does oxidation affect delamination? Are all forms of polyethylene, including that used by [defendant] (which the company claims to be oxidation-resistant), susceptible to delamination? What effect, if any, does implantation into the human body have on the rate of oxidation? Basic polymer science alone cannot answer these questions. Some greater methodology is required to bridge the analytical gap between general principles and particular conclusions, and to vest thereby the opinion with requisite reliability.

We're not saying the outcome is wrong (though it does seem questionable to undo a verdict partly on the ground that the district court's reliability analysis was inadequate, without remanding for a new analysis). We do suspect, however, that the panel's outlook may have been affected by its perception that the plaintiff/appellant's citations to the record (in the stricken portion of the briefing) were misleading. Readers can take a look at plaintiff's (corrected) appellate brief and judge for themselves. Maybe it would have been better, in retrospect, to have acknowledged forthrightly, in the brief, that the quoted material was from counsel's questions, and that the quoted articles were not themselves in the record. But does the brief really evince an intent to mislead? It does source the quotations to identified locations in the appellate record.

The moral may be that in matters of candor to the tribunal, the appearance of propriety can be as important as propriety itself.