Contact Us for a Free Consultation 914-371-3600

Blog

DAUBERT Serves Defendants Well In Medical Device Cases

Posted by Andrew J. Barovick | Feb 13, 2009 | 0 Comments

 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.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

Menu