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What To Do About Plaintiffs Without Experts

By James M. Beck and Mark Herrmann

The Great Recession, or whatever catchy label you want to use, affected everyone in the law business: drug and device companies, defense lawyers, and, it seems, plaintiffs? lawyers as well. How else to explain two new summary judgment decisions involving devices manufactured by Howmedica, where the plaintiffs? counsel went cheap, failed to get experts, and thus had their cases tossed?

The first case, Hughes v. Stryker Sales Corp., Case No. 1:08-cv-00655-WS-N (S.D. Ala. May 13, 2010), involved an allegedly defective hip prosthesis. The plaintiff brought a host of state-law claims, including claims under Alabama?s product liability act and common law negligence and ?wantonness? claims. Supporting those claims? No expert to testify that the product was defective. No expert to testify that the alleged defect was capable of causing, and did cause, injury. Instead, the plaintiff said she didn?t need no stinkin? expert, and instead essentially tried to make out a res ipsa claim. According to the plaintiff, she could get to a jury because:

(1) The product was recalled, which amounted to an admission of defectiveness. Slip Op. at 6. Uh, ever hear of Rule 407?s prohibition on subsequent remedial measure evidence to prove liability?

(2) The defendant?s overseas manufacturing affiliate, Stryker Ireland, Ltd., received a Warning Letter from the Department of Health and Human Services, stating that an inspection of manufacturing facilities revealed ?several violations? of FDCA regulations. Id. at 7. The plaintiff actually argued that this was enough to give rise to an inference of defect and causation in her specific case.

(3) Finally, the plaintiff argued that, well, she needed to get a new hip prosthesis, so something must have been wrong with her first prosthesis and it must have been the defendant?s fault ? or at least a jury should be allowed to speculate that this is what happened, without the benefit of any expert guidance. Id. at 6, 9-10, 11 n. 10. In support of this argument, the plaintiff dumped a ton of unrelated medical records into the record ? something that annoyed the court to such a degree that it felt compelled to write a lengthy footnote criticizing this record ?dump.? Id. at 6 n.6.

The court easily shot these (frankly silly) arguments down. See id. at 7-12. The court didn't go so far as to say a plaintiff always needs an expert to prove defect and causation in every products case ? of course, the court didn?t rely on drug and device cases to reach that conclusion, see id. at 3-4 and n.4 ? but in a device case, expert defect and causation testimony was required and the failure to provide it was fatal to all the claims.

The second case is equally egregious. In Maxwell v. Howmedica Osteonics Grp., Case 5:07-cv-01062-GTS-DEP (N.N.N.Y. May 10, 2010), the plaintiff alleged defect and failure to warn claims related to a total knee replacement system. The claim was that the system had a ?high percentage? of nickel, which caused an allergic reaction in the plaintiff, and Howmedica should have warned of this risk. Slip Op. at 2. The plaintiff actually disclosed one ?expert? ? the doctor who had performed the second knee replacement. That doctor, however, offered no opinions on design, manufacture, the metallic composition of the system, and the adequacy of the warnings. Id. at 3 n.1. There was no risk-utility analysis, and no evidence that nickel is highly toxic, although the plaintiff asked the court to take judicial notice of this ?fact? without providing any reports or studies supporting the assertion. Id. at 13. When it came to the warning claims, the plaintiff failed even to respond to the defendant?s arguments establishing the adequacy of the warning. Id. at 15. Maybe those arguments were compelling, or maybe the plaintiff?s lawyer just gave up because it would cost too much or take too long to respond ? we don?t know. But the court nonetheless had to analyze on its own the sufficiency of those claims; it concluded the warning was adequate as a matter of law because the package inserts contained specific information about the metallic composition of the knee system, and provided risk information about the ?rare? risk of metal sensitivity. Id. at 16-17.

These two cases are nice wins, even if they seem to be slam dunks. But they also beg the question of what to do when a plaintiff puts a defendant (and the court system) through the ringer, only to bail (or put on at best a half-hearted effort) when the case is finally subjected to any real scrutiny. TwIqbal, as we now call it, is a nice start to weeding out meritless cases. But how much time and money did the defendant have to spend defending these cases? How much disruption of regular business did these cases cause? How much judicial time and effort was required to manage these cases and ultimately dispose of them when it turned out the plaintiff didn?t bother to get experts or even really support their claims? Much as we would like to have a blanket rule that plaintiffs must pay costs and attorney?s fees any time they file a dog of a case, we recognize that?s an uphill battle. But at a minimum, in cases like these, where the plaintiff gets to the summary judgment altar only to reveal she didn?t bring an expert (even though it was obvious he needed one), and no longer pursues a claim (even though she has not dismissed that claim from the case), it seems only fair that the plaintiff should have to pay for the whole party. We get it: Times may be tough for a lot of plaintiff?s lawyers out there, and we know it is expensive to pursue cases. But that?s the point ? it?s expensive to defend them too, and highly disruptive, so courts need to do something to curb this annoying and wasteful practice of plaintiffs filing cases, spending no money to develop those cases, and then rolling the dice that they can get to a jury.

Full post as published by Drug and Device Law on May 19, 2010 (boomark / email).