Canty et al v. DePuy Orthopaedics Inc. et al

Filing 56

ORDER. Signed 6/4/2024 by Judge Jeffrey S. White denying 34 Defendants' Motion to Exclude the Opinions of John H. Velyvis, M.D ; denying 35 Defendants' Motion to Partially Exclude Certain Opinions of Albert H. Burstein, Ph.D and denying in part and requiring briefing in part Defendants' Motion for Summary Judgment 36 . Opposition to the Motion for Summary Judgment due 6/18/2024. Reply, if any, due 6/28/2024. (klh, COURT STAFF) (Filed on 6/5/2024)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

RICHARD CANTY, et al.,
Plaintiffs,

9
10

United States District Court
Northern District of California

11
12

Case No. 14-cv-05407-JSW

v.
DEPUY ORTHOPAEDICS INC., et al.,
Defendants.

13

ORDER DENYING DEFENDANTS’
MOTION TO EXCLUDE OPINIONS
OF DRS. VELYVIS AND BURSTEIN
AND DENYING IN PART AND
REQUIRING BRIEFING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 34, 35, 36

14
15
16

Now before the Court are motions filed by Defendants DePuy Orthopaedics, Inc. n/k/a

17

Medical Device Business Services, Inc., DePuy, Inc., Johnson & Johnson, Johnson & Johnson

18

Services, Inc., and Johnson & Johnson International (collectively, “Defendants”). The motions

19

are: (1) motion to exclude the opinions of John H. Velyvis, M.D.; (2) motion to partially exclude

20

certain opinions of Albert H. Burstein, Ph.D.; and (3) motion for summary judgment.

21

Having considered the parties’ papers and authority, the Court DENIES Defendants’

22

motion to exclude the opinions of Dr. Velyris; DENIES Defendants’ motion to partially exclude

23

certain opinions of Dr. Burstein; and DENIES IN PART Defendants’ motion for summary

24

judgment and requires additional briefing in part.

25

BACKGROUND

26

Plaintiffs Richard and Betsy Canty allege that a defective metal-on-metal hip implant (“the

27

Implant”) manufactured and sold by Defendants caused Mr. Canty to sustain various injuries. Mr.

28

Canty began to experience hip discomfort in 2008 and in 2009 received a total hip replacement

1

using the Implant. Three years later, Mr. Canty began to experience stiffness and pain and, in

2

January of 2013, experienced excruciating right hip and groin pain. After right hip aspiration

3

disclosed dark black liquid, he was diagnosed with right total hip infection and emergency surgery

4

was performed to revise the Implant using a polyethylene liner. Following this revision surgery,

5

the infection returned and after removal of the prosthesis and implantation of antibiotics, Mr.

6

Canty underwent his fourth surgery, a right revision total hip arthroplasty.
As a result of his injuries, Plaintiffs brought claims based on negligence, strict products

United States District Court
Northern District of California

7
8

liability based on failure to warn and design defect, fraud and fraudulent concealment, negligent

9

misrepresentation, and breach of the implied warranty of merchantability. Ms. Canty also brings

10

an additional claim for loss of consortium. This case was originally filed in this Court on

11

December 10, 2014, and then transferred on February 9, 2015, before a Multi-District Litigation

12

Court (“MDL”) for pretrial coordination before the United States District Court for the Northern

13

District of Texas, Honorable Ed Kinkeade presiding. Judge Kinkeade stayed all of the cases

14

pending the outcomes of a series of bellweather trials. Although the majority of the cases in the

15

MDL were resolved, after failing to settle, this matter was remanded to this Court.
On September 16, 2022, Judge Kinkeade issued a scheduling order in the MDL action,

16
17

setting discovery and motion dates, including the deadlines for filing for all dispositive motions or

18

Daubert motions for December 16, 2022. At the case management conference before this Court

19

upon remand, the parties filed a joint case management conference statement referring to this

20

earlier scheduling order and this Court set trial and pretrial dates. (See Dkt. No. 29, Order dated

21

May 30, 2023.) In that order, the Court set the last day to hear Daubert motions as May 20, 2024.

22

(Id. at 1.)1
Defendants move to exclude all or portions of the opinions of Plaintiffs’ experts.

23
24

Defendants also move for summary judgment.

25
26
27
28

Accordingly, the Court finds that Defendants’ Daubert motions to exclude testimony from
Plaintiffs’ experts are not late. However, the Court did not reset the deadline to file dispositive
motions. Accordingly, the Court finds that although the pending motion for summary judgment is
late, it shall order further substantive briefing, taking into account this Court’s ruling on the
motions to exclude experts and with the goal of resolving on the merits the remainder of issues
raised in that motion as a matter of law.
2
1

ANALYSIS

1
2

A.

Under Federal Rule of Evidence 702, expert witness opinion evidence is admissible if: (1)

3
4

the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the

5

expert’s scientific, technical, or other specialized knowledge may help the trier of fact to

6

understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient

7

facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the

8

expert’s opinion reflects a reliable application of the principles and methods to the facts of the

9

case.

10

United States District Court
Northern District of California

Legal Standard on a Motion to Exclude.

The party proffering an expert bears the burden to show the testimony is admissible.

11

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 n.10 (1993). A district court’s inquiry

12

into admissibility “is a flexible one.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d

13

960, 969 (9th Cir. 2013) (citation omitted). In evaluating proffered expert testimony, the trial

14

court is “a gatekeeper, not a fact finder.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010)

15

(citation and quotation marks omitted). “The district court’s gatekeeping can be performed

16

through numerous procedures – such as motion in limine briefing and oral argument, voir dire, and

17

cross-examination at trial.” United States v. Holguin, 51 F.4th 841, 852 (9th Cir. 2022).

18

“[T]he trial court must assure that the expert testimony ‘both rests on a reliable foundation

19

and is relevant to the task at hand.’” Primiano, 598 F.3d at 564 (quoting Daubert, 509 U.S. at

20

597). “This entails a preliminary assessment of whether the reasoning or methodology underlying

21

the testimony is scientifically valid and whether that reasoning or methodology properly can be

22

applied to the facts in issue.” Daubert, 509 U.S. at 592-93. The purpose of the Daubert inquiry is

23

“to make certain that an expert, whether basing testimony upon professional studies or personal

24

experience, employs in the courtroom the same level of intellectual rigor that characterizes the

25

practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150

26

(1999). “Expert opinion testimony is relevant if the knowledge underlying it has a valid

27

connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable

28

basis in the knowledge and experience of the relevant discipline.” Daubert¸ 509 U.S. at 565
3

United States District Court
Northern District of California

1

(citation and internal quotation omitted). A trial court is not required “to admit opinion evidence

2

that is connected to existing data only by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at

3

158 (1999) (quoting General Elec. Co. v. Joiner, 552 U.S. 136, 146 (1997)).

4

“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence,

5

and attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564 (citation omitted).

6

The judge is “supposed to screen the jury from unreliable nonsense opinions, but not exclude

7

opinions merely because they are impeachable.” Alaska Rent-A-Car, 738 F.3d at 969. Simply

8

put, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just

9

whether [their] testimony has substance such that it would be helpful to a jury.” Id. at 969-70. In

10

applying Rule 702, the Ninth Circuit “contemplates a broad conception of expert qualifications.”

11

Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1018 (9th Cir. 2004) (cleaned up).

12

In addition, alternative or opposing opinions or tests do not “preclude the admission of the

13

expert’s testimony – they go to the weight, not the admissibility.” Kennedy v. Collagen Corp.,

14

161 F.3d 1226, 1231 (9th Cir. 1998). “Disputes as to the strength of [an expert’s] credentials,

15

faults in his use of [a particular] methodology, or lack of textual authority for his opinion, go to

16

the weight, not the admissibility, of his testimony.” Id. (quotation omitted).2

17

B.

Motion to Exclude Opinions of Dr. Velyvis.
Defendants move to exclude the expert opinions of Dr. Velyvis on several bases: (1) his

18
19

general causation opinion that the Implant is associated with an increased risk of infection

20

compared to other implants is not reliable because he does not provide scientific support; (2) his

21

training is in orthopedic medicine and is therefore unqualified to testify about issues pertaining to

22

product defect, product testing, or compliance with FDA requirements; (3) his regulatory and

23

training opinions are inadmissible because they are not rooted in objective scientific standards.
Plaintiffs contend the Dr. Velyvis bases his opinions on his in-person examination of Mr.

24
25

Canty, his review of Plaintiff’s pre- and post- initial implantation medical records, his review of

26
27
28

2

The Court recognizes the recent amendments to Rule 702 and has performed its critical gatekeeping function to find that the doctor’s principles and methods are reliably applied to the casespecific facts.
4

United States District Court
Northern District of California

1

transcripts of the depositions of the two implanting surgeons, his education as a biomedical

2

engineer and doctor of medicine, his training and experience as a practicing orthopedic surgeon

3

who performs total hip replacement surgeries, and his study and knowledge of the scientific

4

literature, including many peer-reviewed epidemiological studies and articles. Dr. Velyvis cites

5

48 peer-reviewed publications in his expert report to support his opinion that “[w]hen there is the

6

creation of exuberant metal debris in particles for a prolonged period of time, which can lead to

7

inflammation of the tissues, standing fluid, that the chances of infection go up extremely high.

8

And that revisions will be needed for failure, not only for the infection, but also for osteolysis and

9

pain and loosening due to the creation of the metal particles and metal ions.” (See Dkt. No. 50-3,

10

Velyvis Deposition at 92:8-24, 103:18-24.) To the extent Defendants challenge the doctor’s

11

reliance of the 48 publications, that objection goes to the weight of his testimony, not its

12

admissibility.

13

In addition, having reviewed Dr. Velyvis’ extensive training and positions as an orthopedic

14

surgeon, the Court finds him qualified to testify his theory of causation for Plaintiff’s injuries.

15

(See Dkt. No. 50-2, Velyvis CV.) The doctor identified objective evidence that he claims support

16

his position, namely the operative report indicating the presence of red blackened fluid aspirated

17

from Mr. Canty’s hip, fluid in the tendinous area, and a positive strep viridans culture, as well as

18

the reported symptoms experienced by the patient. He testified that “any tissue that has blackened

19

stain means that the cells contain metal particles, which is completely abnormal, and this is the

20

beginning stages of the creation of a pseudotumor. So once you see pus and fluid and metal-

21

stained particles, whether the particles are already necrotic or becoming necrotic, it’s in any case

22

an abnormal situation. It’s not good.” (Dkt. No. 50-3, Velyvis Deposition at 77:13-16, 78:5-13.)

23

In rendering this opinion, Dr. Velyvis relied on his own experience performing orthopedic

24

surgeries as well as following the literature and attending meetings in which this type of issue has

25

been discussed on a population-wide basis. (See id. at 78:18-20, 79:2-6.) Based also on his

26

understanding of the consensus in the orthopedic community, he testified that “certain implants

27

have been proven and shown to have an increased risk of failure including infection” and that the

28

Implant has an increased chance of causing infection, based on multicentered studies and registries
5

1

that track implants. (See id. at 82:23-24, 83:10-22.) The Court finds that Dr. Velyvis is qualified

2

to testify about his opinions of causation in this matter.

3

C.

Also before the Court is Defendants’ motion to partially exclude certain opinions of Dr.

4
5

Albert Burstein, a biomechanical engineer who seeks to testify at trial on the mechanics of the hip

6

joint and hip implant design, to which Defendants have no objection. Dr. Burstein is also

7

proffered to testify about the effects of debris particles, including the particle threshold for

8

osteolysis, lubrication issues in implant design, failure analysis, and the truthfulness of

9

Defendants’ marketing. It is these latter opinions that Defendants seek to exclude.
These opinions have been determined to be reliable and admissible by the MDL Court in

10

United States District Court
Northern District of California

Motion to Partially Exclude Certain Opinions of Dr. Burstein.

11

In re DePuy Orthopaedics, Inc., 2016 WL 6271474 (N.D. Tex. Jan. 5, 2016). The MDL Court

12

found that “Dr. Burstein’s lengthy experience as an engineer and designer of orthopedic implants

13

has informed his familiarity an expertise with the materials used in such implants, including the

14

results of decades of research on the effect of the wear debris particles caused by materials used in

15

such implants.” Id. at *10. The MDL Court also found that Dr. Burstein could perform a failure

16

analysis on the Plaintiffs’ “retrieved implants and opine as to the nature and cause of Plaintiffs’

17

injuries.” Id. The Court similarly found that “Dr. Burstein’s analysis of lubrication issues in his

18

implant design and failure analysis work qualify him to opine on the same despite the fact that his

19

degrees are in the field of mechanical engineering rather than tribology, and … while not a

20

marketing expert, [he] is sufficiently qualified to compare Defendants’ marketing messages with

21

the underlying research.” Id. The MDL Court found that Dr. Burstein’s methodology underlying

22

his evaluation of implants “regarding their associated particle thresholds is objectively verifiable

23

and subject to repetition and cross-examination, and based upon reliable data.” Id.3
On August 15, 2023, the district court in Western District of Missouri rejected the same

24
25
26
27
28

3

Again, approximately 10 months later, the MDL Court rejected these same arguments against
Dr. Burstein. The Court again found that Dr. Burstein was qualified as an expert to testify about
materials used in implants, the wear of debris particles, causation of injuries, analysis of
lubrication issues, and marketing comparison. In re DePuy Orthopaedics, Inc., 2016 WL
9560113, at *5 (N.D. Tex. Oct. 3, 2016).
6

1

arguments made here by Defendants and found that although the rulings by the MDL Court were

2

not binding, “they are nonetheless persuasive, particularly because the MDL court had the benefit

3

of greater familiarity, both in terms of breadth and depth, with Pinnacle Ultmet cases.” William K.

4

Winkelmeyer, M.D. v. DePuy Orthopaedics, Inc., 2:13-cv-04058-MDH. Similarly, here, the Court

5

finds the MDL’s twice-held conclusion to admit the testimony of Dr. Burstein, while not binding,

6

is persuasive. Based on the report and submissions Dr. Burstein relied upon here, the Court finds

7

that Dr. Burstein is qualified to testify about his opinions in this matter. The Court therefore

8

adopts the same holding as the MDL Court and for the same reasons given in that proceeding.

9

D.

United States District Court
Northern District of California

10

Motion for Summary Judgment.
The Court finds that Defendants’ motion for summary judgment is late-filed. However,

11

the Court shall address the merits of the arguments made in that motion. The first contention that

12

Plaintiffs cannot prevail because there is no admissible evidence of medical causation fails due to

13

this Court’s holding on the motions to exclude experts. Defendants also move for summary

14

judgment on Plaintiffs’ claims based on fraud and failure to warn, as well as for Plaintiffs’ claims

15

for strict liability sounding in design defect, their claim for breach of the implied warranty of

16

merchantability, and Ms. Canty’s loss of consortium claim.

17

Due to the late filing of the motion, Plaintiffs did not respond substantively to these

18

arguments. The Court HEREBY SETS the deadline for an opposition to the motion for summary

19

judgment of June 18, 2024. The reply, if any, shall be filed no later than June 28, 2024. Should

20

the Court determine a hearing is necessary, it will be set by further order. Otherwise, the pending

21

motion for summary judgment shall be resolved on the papers in due course.

22
23
24
25
26

IT IS SO ORDERED.
Dated: June 4, 2024
______________________________________
JEFFREY S. WHITE
United States District Judge

27
28
7