Sean P. Wajert , of the Mass Tort Defense Blog , cites two recent federal cases to show that plaintiffs bringing products cases involving medical devices are not having an easy time meeting the Daubert standard.
Daubert forces judges to act as a filter of proposed expert testimony, so that so called “junk science” and untested theories will not see the light of day in the courthouse. While the principle is laudable, and necessary, it also results in plaintiffs' attorneys having to jump through some barely attainable hoops.
As Mr. Wajert reminds us, courts will consider, among other things: whether the scientific theory can be and has been tested; whether the theory has been subjected to peer review and publication; the theory's known or potential rate of error when applied; and whether the technique or theory has been “generally accepted” in the scientific community.
This can get complicated. You might think that explaining the failure of prosthetic knee would be relatively straightforward. But when a plaintiff alleges that the manufacturer's sterilization of the product by gamma irradiation in the air caused it to fail, expert testimony is necessary to help the fact finder understand what took place. The court in Fuesting v. Zimmer , 2009 WL 174163 (C.D. Ill., 1-26-09) found that plaintiff's expert had not sufficiently connected his conclusions to accepted principles. Gaps in the connection included, as pointed out by Mr. Wajert:
- How much radiation does to take to cause oxidation, and to what degree?
- How much oxidation must occur to render polyethylene more susceptible to delamination?
You get the idea. But Mr. Wajert makes an interesting point. When a court provides a second opportunity for a plaintiff to meet the standard after a motion or appeal, the court's decision “provides a roadmap for the plaintiff on what holes to fix.” (Mr. Wajert is on the defense side.) He is probably correct. But with standards like these, is that unfair? Even if you were equipped with the legal equivalent of a GPS device, you still need to meet difficult standards.