LOS ANGELES (Legal Newsline) - A medical device manufacturer’s expert was improperly excluded from testifying in a lawsuit over an allegedly defective hip implant because the trial judge misunderstood the difference between proving a case and casting doubt on a plaintiff’s claims, a California appeals court ruled.
“To allow testimony from a sincere but overconfident expert, but not from an equally sincere expert harboring reasonable doubts, risks closing the courtroom door to scientific consensus (or the absence thereof),” California’s Second District Court of Appeal said in a May 26 decision involving Zimmer Inc. “It is therefore imperative that the party without the burden of proof be allowed to suggest alternative causes, or the uncertainty of causation, to less than a reasonable medical probability.”
Gary Kline got a total hip replacement in 2007 with Zimmer’s Durom Cup implant but had the device replaced with another type in 2008 after encountering severe pain. He reported being “feeling pretty good” by March 2009, but his pain returned and he spent the next eight years in treatment with a rheumatologist who prescribed steroids and other drugs.
At some point Kline decided to sue Zimmer, claiming the Durom cup was defective and had it worked he wouldn’t have suffered so much pain. A jury awarded him $153,000 in economic damages and $9 million for pain and suffering in 2015, but the trial court ordered a new trial because of excessive damages and misconduct by Kline’s lawyer. The Second District upheld the order for a new trial in 2018.
The second trial stared in 2019, with Kline’s experts blaming the first, unsuccessful surgery for all his subsequent pain. The judge excluded Zimmer’s only expert witness because he wasn’t willing to tell the jury about alternative causes for Kline’s pain to “a reasonable medical certainty.”
The jury came back with $81,000 in economic and $7.6 million in noneconomic damages. Zimmer appealed again, citing the exclusion of its expert testimony as well as the judge’s refusal to allow jurors to see photographs and a video showing Kline engaging in hunting and shooting activities.
The appeals court said it made a fresh examination of Zimmer’s expert testimony because the trial judge excluded it as being insufficient under California law. That was an error, the appeals court concluded, because the standard of reasonable medical certainty only applies to experts hired by the plaintiff, who has the burden of proof. In lawsuits involving complex medical issues, an expert opinion is also needed to get past the first step of allowing the case to proceed to trial, the appeals court noted.
“Testimony by a plaintiff’s expert who cannot opine to a reasonable medical probability is properly excluded because the opinion could not sustain a finding in the plaintiff’s favor,” the court said. “The same does not apply to a defendant’s efforts to challenge or undermine the plaintiff’s prima facie case.”
The majority opinion by Judge Albert T. Harutunian III went on to explain why there are different standards for defense and plaintiff experts. When there is no scientific consensus on a question, the jury has the job of deciding which expert to believe, the court said. To require a defense expert to state the plaintiff expert is scientifically incorrect, the court said, “asks the impossible of a rebuttal expert who, by definition, is responding to the testimony of an expert who has said exactly what the trial court would require the rebuttal expert to testify no doctor could say.”