Alarid v. Biomet, Inc et al

Filing 131

ORDER Denying 68 Plaintiffs Motion To Exclude Testimony of Defendants [sic] Expert Dr. Edward Seade, by Judge Robert E. Blackburn on 2/4/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02667-REB-NYW
ALFONSO A. ALARID,
Plaintiff,
v.
BIOMET, INC.,
BIOMET ORTHOPEDICS, LLC,
BIOMET MANUFACTURING, LLC,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION TO EXCLUDE
TESTIMONY OF DEFENDANT’S [sic] EXPERT DR. EDWARD SEADE
Blackburn, J.
The matter before me is Plaintiff’s Motion To Exclude Testimony of
Defendant’s [sic] Expert Dr. Edward Seade [#68],1 filed October 7, 2015. I deny the
motion.
I. JURISDICTION
I have jurisdiction over this case pursuant to 28 U.S.C. § 1331 (diversity of
citizenship).
II. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
expert witness testimony, provides that

1
“[#68]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

[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.
FED. R. EVID. 702. As interpreted by the Supreme Court, Rule 702 requires that an
expert’s testimony be both reliable, in that the witness is qualified to testify regarding the
subject, and relevant, in that it will assist the trier in determining a fact in issue.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786,
2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360
F.3d 1206, 1210 (10th Cir. 2004). An expert may be qualified by “knowledge, skill,
experience, training, or education” to offer an opinion on an issue relevant to the case.
FED. R. EVID. 702(a). See also 103 Investors I, L.P. v. Square D Co., 470 F.3d 985,
990 (10th Cir. 2006). An expert opinion is reliable when it is based on sufficient facts or
data, employs a methodology generally deemed reliable in the expert’s field, and
properly applies such methods to the facts of the case. See FED. R. EVID. 702(b), (c), &
(d); United States v. Crabbe, 556 F.Supp.2d 1217, 1222-23 (D. Colo. 2008).
Guided by these principles, the trial court has broad discretion in determining
whether expert testimony is sufficiently reliable and relevant to be admissible. Truck
Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235,
1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain
that the expert . . . employs in the courtroom the same level of intellectual rigor that

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characterizes the practice of an expert in the relevant field.” Goebel v. Denver and Rio
Grand Western Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire,
119 S.Ct. at 1176). Generally, “rejection of expert testimony is the exception rather than
the rule.” United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in
part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009). See also FED. R. EVID.
702 (2000 Advisory Comm. Notes). “Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 113 S.Ct. at
2798.
III. ANALYSIS
Plaintiff in this case alleges claims for strict products liability and negligence
related to alleged defects in the Comprehensive Reverse Shoulder, a prosthetic device
designed, manufactured, marketed, and sold by defendants. Plaintiff had
Comprehensive Reverse Shoulder devices implanted in both shoulders in 2009 and
2010. The devices later fractured, necessitating their removal and replacement.
Defendants have designated Dr. Edward Seade, an orthopedic surgeon
specializing in shoulder orthopedics, as an expert to testify at trial. Dr. Seade’s expert
report details four primary opinions:
(1) That the Comprehensive Reverse Shoulder device is a
“last resort device” (Plf. Motion App., Exh. 1 at 3-5);
(2) That the benefits of the Comprehensive Reverse
Shoulder device outweigh its inherent risks (id., Exh. 1 at 56);

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(3) That the Comprehensive Reverse Shoulder device was
state of the art at the time of plaintiff’s initial surgeries (id.,
Exh. 1 at 6-7; and
(4) That patient compliance with doctor instructions and
physical therapy are essential for proper and full recovery
post-surgery (id., Exh. 1 at 7-8).
In addition to challenging each of these opinions individually, plaintiff suggests more
broadly that Dr. Seade’s testimony should be excluded because none of his opinions
bears any relevance to the central issue in the case, that is, why plaintiff’s prosthetics
failed. All of these objections, both general and specific, are without merit.
Starting with plaintiff’s global objection, he is simply wrong. Evidence is relevant
if it has any tendency to make a fact that is of consequence in determining the action
more or less probable than it would be without the evidence. FED. R. EVID. 401. Dr.
Seade’s opinions easily satisfy this liberal standard, as they make more probable facts
that would contradict plaintiff’s design defect claims.2 For example, an opinion that a
product was the state-of-the-art tends to negate an inference that it was defective by
suggesting that there was no safer design feasible at the time. See Wankier v. Crown
Equipment Co., 353 F.3d 862, 867 (10th Cir. 2003); Armentrout v. FMC Corp., 842
P.2d 175, 185 (Colo. 1992). An analysis of the risks and benefits of a device, including
an opinion that it was a product of last resort, addresses directly the elements plaintiff
must prove in a design defect case such as this one. See Kokins v. Teleflex, Inc., 621

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Indeed, to the extent plaintiff means to imply that an expert opinion is relevant only to the extent
it goes directly to an ultimate issue of fact, he turns the Federal Rules of Evidence on their head. While
the rules permit an expert to testify in the form of an opinion on the ultimate issue in a case in proper
circumstances, see FED. R. EVID. 704(a) & Adv. Comm. Notes, Okland Oil Co. v. Conoco Inc., 144 F.3d
1308, 1328 (10th Cir. 1998), there is certainly no requirement that the expert express his opinion in that
form, see Cook v. Rockwell International Corp., 580 F.Supp.2d 1071, 1083 (D. Colo. 2006).

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F.3d 1290, 1293 (10th Cir. 2010). Finally, testimony suggesting that plaintiff was no
worse off, in terms of pain and functionality, after removal and reimplantation of the
Comprehensive Reverse Shoulder device than he would have been had he never had
the surgery plainly is relevant to an assessment of his alleged damages.
Plaintiff’s arguments fair no better when examined individually. The fact that
plaintiff does not dispute that the Comprehensive Reverse Shoulder device was
intended for patients who had no other options does not make testimony to that effect
irrelevant. Defendants remain entitled to make their case, and testimony that the device
was an option of last resort and thus had inherent limitations plainly is relevant to the
question of defectiveness vel non.
Plaintiff next suggests that Dr. Seade’s opinions that the Comprehensive
Reverse Shoulder device was the state of the art and his analysis of the relative
benefits of the device at the time of plaintiff’s surgeries are unsupported. This argument
is belied by the very report it challenges, wherein Dr. Seade recounts his long
experience in the performance of shoulder surgery in general and the implantation of
reverse shoulder systems in particular, as well as his familiarity with a variety of
competing systems. Such extensive experience provides more than ample basis for Dr.
Seade to make the comparisons and offer the opinions expressed in his report. To the
extent plaintiff believes Dr. Seade should have reviewed the device’s design history file
(a dubious contention, given his lack of expertise in engineering or some other relevant
discipline) or addressed product recalls or different variants of the device, those are
matters going to the weight of his opinions, not their admissibility. Plaintiff certainly can
explore any such supposed deficiencies on cross-examination.
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Finally, although Dr. Seade acknowledged that he had insufficient evidence at
the time of his report to determine whether there was any issue regarding plaintiff’s
compliance vel non with post-surgical instructions, general testimony regarding the
necessity of compliance may still help the jury evaluate other evidence to be presented
in the case. “It is also well-settled that expert testimony explaining general principles is
admissible, without application of these principles to the facts of the case, if the
explanation would assist the trier of fact and is found to be reliable.” Cook v. Rockwell
International Corp., 580 F.Supp.2d 1071, 1083 (D. Colo. 2006). Relatedly, and as
noted above (see supra n. 2), although an expert may opine on an ultimate issue of fact
in appropriate circumstances, his opinion is not inadmissible when it does not offer such
an opinion. This argument thus provides no basis for striking Dr. Seade’s testimony,
either.
IV. ORDERS
THEREFORE, IT IS ORDERED that Plaintiff’s Motion To Exclude Testimony
of Defendant’s [sic] Expert Dr. Edward Seade [#68], filed October 7, 2015, is denied.
Dated February 4, 2016, at Denver, Colorado.
BY THE COURT:

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