Myatt v. Smith & Nephew, Inc.
Filing
77
MEMORANDUM OPINION granting in part as to Count V and denying in part as to Counts, I, II, III, and IV of the Complaint re 24 Motion for Summary Judgment; denying 27 & 29 Motions to Exclude Expert Testimony of Mr. Coleman and Mr. Scott and granting 31 Motion to Exclude Expert Testimony of Dr. Newbern. A settlement conference will be set by separate Order. Signed by Honorable Timothy L. Brooks on February 6, 2019. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JOHN “JAY” MYATT
V.
PLAINTIFF
CASE NO. 3:17-CV-03102
SMITH & NEPHEW, INC.
DEFENDANT
MEMORANDUM OPINION
I. BACKGROUND
This case involves the failure of a hip-replacement prosthetic device that was
manufactured by Defendant Smith & Nephew and implanted in Plaintiff John “Jay” Myatt.
The device at issue is identified as a “size 15 Synergy Femoral Stem implant,” but for
ease of reference will be referred to throughout this opinion as the “Synergy Stem.” In
very simple terms, when a patient undergoes a hip replacement surgery using this device,
the Synergy Stem—which is a metal shaft made of a titanium alloy—is driven into the
patient’s femur and then attached to a metal or ceramic femoral head. The femoral head
is then inserted into the socket of the patient’s pelvis.
According to the undisputed facts, Myatt underwent a hip replacement surgery
after he was involved in a serious car accident in 2004. The doctor who performed the
surgery implanted the Synergy Stem in Myatt’s right femur and connected the device to
a femoral head, which was inserted into the right socket of Myatt’s pelvis. Sometime
within the next five years after the surgery, Myatt began experiencing pain and limited
range of motion in his right hip.
He was evaluated by Dr. Gordon Newbern, who
1
diagnosed Myatt in 2009 with heterotopic bone growth 1 around the right pelvis and femur.
Dr. Newbern determined that the excess bone that had developed around the site of the
hip replacement was responsible for Myatt’s symptoms of pain and limited range of
motion.
On October 8, 2009, Dr. Newbern performed surgery on Myatt, cutting the excess
bone from around his hip, but leaving the Synergy Stem in place. Dr. Newbern’s operative
report described the procedure as follows:
There was a large amount of heterotropic [sic] bone emanating from the
posterior ilium, essentially encasing the acetabular component. There was
bone ______ from the posterior greater trochanter, almost coming in
contact with the heterotropic [sic] bone from ilium. The external rotators
were bound up in this tissue, but most of the external rotators had been
replaced by bone and no usable external rotator tissue remained. Once the
soft tissue had been cleared and, at all times, taking care to avoid injury to
the sciatic nerve, the heterotopic bone was removed with osteotomes,
chiseling it away back to close to normal contours. The large amount of
extra bone that had replaced the area of the femoral neck was also removed
with reciprocating saw, and, in this fashion, systematically, all the extra bone
around the hip was removed. There was significant amount of bone
superiorly, which had been blocking abduction, and this was removed also.
The hip was then dislocated. The Oxinium head was removed, and the bone
and scar tissue were removed circumferentially around the hip. There was
excess bone inferiorly, superiorly, and anteriorly, and this was all carefully
removed.
(Doc. 24-7, pp. 2-3).
Myatt testified that after the 2009 surgery, he limped less. (Doc. 24-5, p. 13). Dr.
Newbern reported that Myatt “seemed to be feeling much better for having had the
heterotopic bone removed and had made a good recovery[,] but he still had stiffness with
Heterotopic bone growth is defined as “the formation of bone outside the normal
skeleton,” which “can occur in soft tissue and is usually found within muscular, adipose,
or nonmuscle fibrous or connective tissue.” https://www.mayoclinic.org/medicalprofessionals/endocrinology/news/diagnostic-approach-to-disorders-of-extraskeletalbone-formation/mac-20429760 (last visited January 16, 2019).
1
2
only 7 degrees of external rotation and 5 degrees of internal rotation but without
discomfort.” (Doc. 31-1, p. 1).
On June 30, 2016, nearly seven years after the 2009 surgery, Myatt’s right hip
gave way underneath him as he was walking across a parking lot. He was taken to the
hospital, where x-rays showed the Synergy Stem had broken into two pieces at the area
of the femoral neck. Myatt underwent another surgery on July 1, 2016, and Dr. Newbern
removed the broken Synergy Stem and replaced it with a new hip prosthesis that was not
manufactured by Smith & Nephew. Myatt then developed an infection at the site of the
surgery, and on April 26, 2017, Dr. Newbern performed an operation to clean, remove,
and replace parts of the new hip device. Myatt filed this lawsuit in the Circuit Court of
Searcy County, Arkansas, on October 10, 2017, and it was removed to this Court by
Smith & Nephew on November 9, 2017. See Doc. 1.
In the Complaint (Doc. 3), Myatt asserts five causes of action against Smith &
Nephew. Count I is a claim for negligence; Count II is a claim for strict products liability;
Count III is a claim for a breach of the implied warranty of merchantability; Count IV is a
claim for a breach of the implied warranty of fitness for a particular purpose; and Count V
is a claim for a breach of express warranties. Smith & Nephew has moved for summary
judgment on all Counts. Defendant has also filed three motions in limine to exclude some
or all of the expert testimony of three of Myatt’s witnesses: metallurgist William R.
Coleman, damages expert Dr. Ralph J. Scott, and Myatt’s treating physician, Dr.
Newbern. Below, the Court will take up the motions in limine first, followed by the motion
for summary judgment.
3
II. LEGAL STANDARDS
A. Exclusion of Expert Testimony
The decision whether to exclude expert testimony is committed to a district court’s
discretion, subject to the Federal Rules of Evidence, including Rule 702. Johnson v.
Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014). Rule 702 states that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
The Eighth Circuit has “boiled down” these requirements into a three-part test:
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the ultimate issue
of fact. This is the basic rule of relevancy. Second, the proposed witness
must be qualified to assist the finder of fact. Third, the proposed evidence
must be reliable or trustworthy in an evidentiary sense, so that, if the finder
of fact accepts it as true, it provides the assistance the finder of fact requires.
Johnson, 754 F.3d at 561 (quoting Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.
2008)).
The proponent of expert testimony bears the burden of showing by a
preponderance of the evidence that these requirements are satisfied, but “[c]ourts should
resolve doubts regarding the usefulness of an expert’s testimony in favor of admissibility.”
See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757–58 (8th Cir. 2006).
Nevertheless, “a court should not admit opinion evidence that ‘is connected to existing
data only by the ipse dixit of the expert.’” Id. at 758 (quoting Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997)).
4
B. Summary Judgment
Summary judgment is appropriate if, after viewing the facts and all reasonable
inferences in the light most favorable to the nonmoving party, the record “shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). “Once a party moving for summary judgment has made a
sufficient showing, the burden rests with the non-moving party to set forth specific facts,
by affidavit or other evidence, showing that a genuine issue of material fact exists.” Nat’l
Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must
show there is sufficient evidence to support a jury verdict in their favor.” Nat’l Bank, 165
F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case
founded on speculation or suspicion is insufficient to survive a motion for summary
judgment.” Id. (citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “When
opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
III. DISCUSSION
A. Motion to Exclude Expert Testimony of William R. Coleman (Doc. 27)
Smith & Nephew argues there are three reasons why Mr. Coleman should not be
permitted to testify. First, Defendant contends that since Mr. Coleman’s experience and
5
expertise are limited to the fields of metallurgical, mechanical, and general engineering—
and since he admittedly has no expertise in the areas of design, manufacture, or
biomechanics of a medical device—he is unqualified to opine about possible causes of
Myatt’s Synergy Stem failure. Generally speaking, it is Mr. Coleman’s opinion that a
defect in the metal composing the Synergy Stem rendered the device more susceptible
to cracking, breaking, and ultimate failure. But Smith & Nephew believes that if Mr.
Coleman is permitted to testify solely as to the metallurgical composition of the Synergy
Stem, “without any consideration of the biomechanical or orthopedic issues that were also
involved,” this testimony would offer only an incomplete picture of the facts and would
tend to confuse and mislead the jury. (Doc. 28, p. 9).
The Court has reviewed Mr. Coleman’s expert report and deposition testimony and
finds that he agreed in his deposition that he was not qualified to testify about all possible
causes of the failure of the Synergy Stem except those related to metallurgical and
engineering principles.
His testimony goes solely to his observation of certain
metallurgical flaws in the device itself. As Smith & Nephew does not seriously dispute
Mr. Coleman’s qualifications to testify as to metallurgical principles or mechanical or
general engineering principles, it is appropriate for Mr. Coleman to offer opinions as to
those areas, and not to others. For example, if Mr. Coleman attempts at trial to offer
opinions relying on the fields of biomechanics, prosthetic design, or orthopedic surgery,
he will not be permitted to do so, as he is not qualified to offer expert opinions in those
areas.
It appears Smith & Nephew’s argument about Mr. Coleman’s qualifications to
testify as an expert may have more to do with a dispute with the factual basis for his
6
conclusion that the device was not manufactured according to appropriate specifications.
Mr. Coleman’s scientific methodology in conducting destructive testing on the device does
not appear to be disputed in the motion, though counsel for Smith & Nephew is, of course,
free to do so in cross-examination at trial. Overall, though, the Court is persuaded that
Mr. Coleman’s expected testimony is based on scientific, technical, or other specialized
knowledge that he has developed through testing methods that are capable of
reproduction and critique by other experts. Accordingly, this testimony will be useful to
the jury.
Second, Smith & Nephew argues that Mr. Coleman’s testimony is too inconsistent
to be reliable and should not be presented to the jury for that reason. After reviewing Mr.
Coleman’s deposition and expert report (Doc. 36-1) the Court disagrees and finds that
his research, methods, and conclusions appear to be thoroughly documented and
organized. The expert report alone is fourteen pages long, and it is supplemented by
more than 100 photographs, x-rays, scans, and charts. Although Smith & Nephew has
raised various points of disagreement with Mr. Coleman’s findings, the disagreement may
be explored on cross-examination. In particular, if Smith & Nephew’s counsel wishes to
point out to the jury any areas of inconsistency in Mr. Coleman’s report and his deposition
testimony, counsel is free to do so.
The final argument Smith & Nephew makes with respect to Mr. Coleman is that he
holds himself out to be a licensed, professional engineer—and has signed his expert
report as such—but does not possess an active professional engineering license in
Oklahoma (where he was once licensed) or in any state. Mr. Coleman admitted in his
deposition that he decided not to renew his Oklahoma license several years ago and is
7
now in “inactive” status. Myatt contends that Mr. Coleman’s lack of an active professional
engineering license should not render him incompetent to give testimony as an expert
witness in this case. Mr. Coleman has an advanced degree in metallurgical engineering,
has taught courses as an adjunct professor in the College of Engineering at the University
of Oklahoma, has testified as an expert witness on metallurgical issues many times and
has not been disqualified, and has served on the ASTM (American Society for Testing
and Materials) committee for medical devices for seven years.
The Court agrees with Myatt that Mr. Coleman’s significant experience and training
in the relevant fields of metallurgy and metallurgical engineering qualify him to serve as
an expert in those fields. His lack of professional licensure (and the ways in which he
may have misled others, either intentionally or unintentionally, about the status of that
licensure) goes only to the weight and credibility of his testimony. It is also potential
fodder for cross-examination. For all these reasons, Smith & Nephew’s Motion to Exclude
Expert Testimony of William R. Coleman (Doc. 27) is DENIED.
B. Motion to Exclude Expert Testimony of Dr. Ralph J. Scott (Doc. 29)
Smith & Nephew also seeks to exclude the testimony of Dr. Ralph J. Scott, Myatt’s
damages expert, while at the same time conceding that Dr. Scott possesses the requisite
knowledge, skill, training, and education to render him an expert in the field. Smith &
Nephew believes Dr. Scott’s testimony should be excluded because it is unreliable.
Specifically, Defendant points out that Dr. Scott has based his opinion about Myatt’s
future earning capacity on a two-sentence letter from Myatt’s former employer, and no
other evidence. Smith & Nephew argues that “Dr. Scott failed to perform any additional
investigation or analysis, including getting further details about how [Myatt’s former
8
employer] came to the numbers, or Plaintiff’s specific work history.” (Doc. 30, p. 5). It
appears Smith & Nephew also disagrees with how Dr. Scott calculated Myatt’s lost
household services, since Dr. Scott relied only on conversations with Myatt and “did not
perform any additional investigation or study . . . .” Id. at 6.
The Court has reviewed Dr. Scott’s background, qualifications, and deposition
testimony and finds that he possesses the requisite knowledge and experience to assist
the trier of fact regarding the issue of damages. His testimony is reliable in an evidentiary
sense because his methodology is clear, and his results are based on data and other
information he collected, as well as interviews with Myatt.
Smith & Nephews’
disagreement with Dr. Scott’s conclusions goes to the weight of his expected testimony,
not to its admissibility, and cross-examination will allow Defendant to convey its concerns
to the jury. Accordingly, Smith & Nephew’s Motion to Exclude Expert Testimony of Ralph
J. Scott (Doc. 29) is DENIED.
C. Motion to Exclude Expert Testimony of Dr. Gordon Newbern (Doc. 31)
Smith & Nephew’s final motion in limine concerns the exclusion of only a part of
Dr. Gordon Newbern’s expected testimony: his ultimate opinion regarding the cause of
the failure of Myatt’s Synergy Stem device. The Motion explains that Dr. Newbern opined
in an earlier deposition, and in a letter he wrote prior to that deposition, that “some
imperfection in the purity to the alloy or impurity of the metal or some unexpected defect
in the manufacturing process of this high-tech titanium metal alloy femoral stem” caused
the Synergy Stem “to break very prematurely” in June of 2016.
(Doc. 31-1, p. 3).
Dr. Newbern is Myatt’s treating physician. In most respects, he is the sort of fact
witness whose testimony does not implicate Federal Rule of Evidence 702 or Federal
9
Rule of Civil Procedure 26(a)(2)(B). By the same token, Dr. Newbern is also an
experienced orthopedic surgeon whose medical knowledge, training, and expertise form
an inseparable backdrop to his factual encounters with Myatt. Within the confines of
explaining his factual interactions and treatment of Myatt, it is certainly acceptable under
Rule 701 for Dr. Newbern to offer opinions that are rationally based on his first-hand
knowledge and perceptions. But Rule 701(c) circumscribes the permissible boundaries
of Dr. Newbern’s lay opinions. “A treating physician’s expert opinion on causation is
subject to the same standards of scientific reliability that govern the expert opinions of
physicians hired solely for purposes of litigation.” Turner v. Iowa Fire Equip. Co., 229 F.3d
1202, 1207 (8th Cir. 2000).
While it is true that he has expertise in the use and implantation of titanium alloy
hip stems, Dr. Newbern readily admits that he is not a product designer, a chemist, or a
metallurgist. The Court is therefore not persuaded that Dr. Newbern is even qualified to
offer Rule 702 opinions relating to the metallurgic properties, manufacturing process,
design, and/or chemical composition of the Synergy Stem at issue in this case. Moreover,
Dr. Newbern’s ultimate causation opinion is not based on scientific data, testing, and/or
the application of scientifically reliable principles and methods. Instead, Dr. Newbern
merely surmises that a defect in the metal must have caused the Synergy Stem to break,
since he cannot fathom another reason why the break might have happened.
Dr.
Newbern’s causation opinion is scientifically unreliable–and therefore inadmissible–
because it amounts to nothing more than ipse dixit.
10
In summary, Dr. Newbern will be permitted to opine about subjects within the
scope of his medical knowledge and experience, as well as the facts surrounding his
diagnosis and treatment of Myatt. But he will not be allowed to offer causation opinions
regarding the failure of the Synergy Stem in Myatt’s case.
More specifically, with
reference to Dr. Newbern’s January 23, 2018 letter, he will be permitted to offer an
impairment-rating opinion, as he is qualified to do so under Rule 702, subject to laying a
proper foundation at trial. In addition, he will be permitted—pursuant to Rule 702 and
subject to a proper foundation—to offer the following opinion about the normally
anticipated longevity of a hip stem: “A modern titanium stem is expected to last well past
20 years of use, expecting on average around 6,000,000 cyclic loads per year during its
service life.
Usually problems with wearing out of the bearing surfaces or other
mechanical or infection problems would lead to the prosthesis being revised . . . .” (Doc.
31-1, p. 3). Dr. Newbern will not, however, be permitted to offer the following opinion: “In
Mr. Myatt’s case the fatigue strength of the metal was surpassed causing it to break . . .
I believe this resulted from some imperfection in the purity to the alloy or impurity of the
metal or some unexpected defect in the manufacturing process of this high-tech titanium
metal alloy femoral stem.” Id.
Accordingly, the Motion to Exclude Expert Testimony of Dr. Gordon Newbern (Doc.
31) is GRANTED to the extent that Dr. Newbern will be prohibited from offering opinion
testimony at trial as to the cause or causes of the failure of Myatt’s Synergy Stem implant.
D. Motion for Summary Judgment (Doc. 24)
The Court will begin its discussion regarding Defendant’s request for summary
judgment with an analysis of Count II of the Complaint, which is a cause of action for
11
products liability. To prevail on summary judgment on this claim, Smith & Nephew must
establish there are no genuine, material disputes of fact as to whether the Synergy Stem
was supplied to Myatt in a defective condition that rendered it unreasonably dangerous,
and whether that defective condition was a proximate cause of his injuries. Ark. Code
Ann. § 16-116-101. After consideration of the evidence presented on summary judgment,
the Court finds there are, indeed, genuine, material disputes of fact as to whether the
Synergy Stem had a manufacturing and/or compositional defect at the time it was
implanted in Myatt’s hip and whether that defect proximately caused his injuries.
Defendant primarily contends that numerous scratches on the device indicate that a
reciprocating saw or other surgical instrument wielded by Dr. Newbern during Myatt’s
2009 surgery weakened the metal structure of the device and caused it to fail. Plaintiff
contends the device failed because its metallic structure was defective, in that it was not
heat-treated correctly to put the metal in the optimum condition to survive its intended
use. Each side’s contention is supported by expert testimony. Defendant disputes this
theory of causation. Given this dispute of material fact, summary judgment is denied as
to Count II.
Summary judgment as to Count I’s claim for negligence is similarly denied. The
Arkansas Supreme Court has established that a negligence claim requires proof of “a
failure to exercise proper care in the performance of a legal duty which the defendant
owed the plaintiff under the circumstances surrounding them.” Marlar v. Daniel, 247 S.W.
3d 473, 476 (Ark. 2007). Here, Myatt alleges that Smith & Nephew breached the duty of
care owed by a manufacturer of a medical device to an end user, in that the Defendant
failed to manufacture the Synergy Stem in a manner that would not cause injury and
12
would not contain material defects.
“Negligence and strict liability are not mutually
exclusive claims. More than one theory of liability is permissible in a products liability
claim.” Nationwide Rentals Co., Inc. v. Carter, 298 Ark. 97, 100-01 (1989). The Court
finds that a genuine, material dispute of fact exists as to whether Smith & Nephew was
negligent in its manufacturing of the Synergy Stem.
As to Counts III and IV, which are claims for breach of the implied warranty of
merchantability and breach of the implied warranty of fitness for a particular purpose,
respectively, the Court finds that genuine, material disputes of fact remain that preclude
summary judgment. “If the particular purpose for which goods are to be used coincides
with their general functional use, the implied warranty of fitness for a particular purpose
merges with the implied warranty of merchantability.” Great Dane Trailer Sales, Inc. v.
Malvern Pulpwood, Inc., 301 Ark. 436, 443 (1990). A valid claim for breach of implied
warranty of merchantability requires that the product in question be unsuited for its
ordinary purpose. Ark. Code Ann. § 4-2-314. A valid claim for breach of implied warranty
of fitness for a particular purpose requires that the product be unfit for the purpose for
which it was required. Ark. Code Ann. § 4-2-315.
Smith & Nephew maintains that the breach of implied warranty claims must fail
because the Synergy Stem was both suited for and fit for use as a hip implant and served
its intended purpose of restoring the use of Myatt’s hip for over twelve years. The Court
finds there are genuine, material disputes of fact as to whether the Synergy Stem was
suited or fit for use as a hip implant device and whether its failure after twelve years was
within known and acceptable industry and medical parameters for this type of product.
Accordingly, summary judgment is denied as to Counts III and IV.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?