Cox et al v. KLS Martin, L.P.

Filing 96

ORDER and OPINION granting 80 motion in limine; granting in part and denying in part 82 motion in limine Signed on 04/11/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

J.C, et al.,

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Plaintiffs,
vs.
KLS MARTIN, L.P.,
Defendant.

Case No. 10-1204-CV-W-ODS

ORDER AND OPINION (1) GRANTING MOTION IN LIMINE (DOC. 80), AND
(2) GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE (DOC. 82)
Defendant KLS moves to exclude evidence that Plaintiff JC sustained a
punctured lung during a surgery to remove the distractor devices. This motion is
granted. KLS also moves to exclude evidence of damages caused by JC’s preexisting
condition and any pain and suffering JC may have experienced during the distraction
procedure. This motion is granted in part and denied in part.

I. BACKGROUND

The Court provided a factual background in its Order dealing with expert
testimony. Order, Doc. 76, pp. 1–2. JC was born June 1, 2009, with a severe case of
Pierre Robins Sequence. On June 9 a bilateral mandibular distraction procedure was
performed to correct the disorder.
This procedure involved implanting two distraction devices on JC’s mandible. It
contemplated JC returning for a final surgery to remove the devices once the distraction
process was complete and the newly-formed bone had hardened. Plaintiff Courtney
Cox (JC’s mother) anticipated JC would be discharged approximately 1 week after the
distraction devices were implanted.
But before JC was discharged, an X-ray revealed that the distraction device on
the right side of JC’s mandible had broken. The device had to be surgically removed

and replaced. JC was discharged on or about June 30.
The final surgery to remove the devices (after distraction and hardening) was
performed August 24. During that surgery a breathing tube punctured JC’s lung.

II. DISCUSSION

Plaintiffs’ remaining claims after summary judgment are strict products liability,
negligence, and breach of the implied warranty of merchantability. These claims all
require Plaintiffs to demonstrate causation. See Bone v. Ames Taping Tool Systems,
Inc., 179 F.3d 1080, 1081 (8th Cir. 1999). KLS’s motions in limine relate to the element
of causation.

(A) Pain and Suffering

KLS seeks to exclude from trial lay testimony that JC experienced pain and
suffering as a result of the distractor body separating from the distal plate. There are
really two parts to KLS’s argument. The first issue is whether JC experienced pain or
suffering at all. The second issue is whether causation between the broken device and
the pain and suffering can be established without expert testimony.
With respect to the first issue, Plaintiffs assert that the fact pain was caused by
surgery and the distraction process (which was extended by the broken device) falls
within the realm of lay understanding. Plaintiffs’ assertion suggests the jury can find JC
experienced pain and suffering based merely on the fact he underwent surgery and
distraction. The Court does not agree. But Plaintiffs also assert evidence exists that
Mr. and Mrs. Cox and Dr. Singhal observed JC’s pain and discomfort associated with
the device breaking. This would be sufficient for the jury to find JC experienced pain
and suffering.
With respect to the causation issue, KLS cites Missouri law in support of its
argument that expert evidence is necessary to prove causation. Although admissibility
of evidence is governed by federal law, US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d
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687, 691 (8th Cir. 2009), the Eighth Circuit has held that Missouri tort law “defines the
permissible inferences that a jury may draw from properly admitted evidence and the
strength of the inference required to create a triable question as to product defect and
causation,” Hickerson v. Pride Mobility Products Corp., 470 F.3d 1252, 1258 n.3 (8th
Cir. 2006). Whether expert testimony is necessary to prove causation in this case is
therefore governed by Missouri law.
KLS argues that evidence of pain JC experienced as a result of the device’s
failure (as opposed to pain from the distraction process generally) is not within the realm
of lay understanding. To prove JC suffered pain attributable to the broken distractor,
KLS contends Plaintiffs must present “evidence regarding the nerve development of
newborns’ mandibles because they differ in sensitivity from adults’ mandibles.”
Suggestions in Support, Doc. 83, p. 7.
In Missouri an expert’s opinion is required to prove that a defendant’s conduct
caused a sophisticated injury, such as emotional distress. See Soper v. Bopp, 990
S.W.2d 147, 157 (Mo. Ct. App. 1999). But expert testimony is not necessary in cases
where a sudden onset of an injury occurs. Id. In these cases, “the injury develops
coincidentally with the negligent act.” Crawford ex rel. Crawford v. Shop ‘N Save
Warehouse Foods, Inc., 91 S.W.3d 646, 652 (Mo. Ct. App. 2002).
“Generally, “[l]ocalized pain or soreness occurring immediately or with only short
delay is sufficient to fit within the rule.’” Williams v. Jacobs, 972 S.W.2d 334, 341 (Mo.
Ct. App. 1998) (citation omitted). But “[g]eneralized pain . . . [is] not covered by the
sudden onset rule.” Id. at 341.
KLS argues no evidence of “immediate, localized pain” exists. Suggestions in
Support, Doc. 83, p. 7. Plaintiffs do not respond directly to this contention except to
assert (as noted before) that Mr. and Mrs. Cox and Dr. Singhal observed JC in pain
associated with the device. The Court concludes this is sufficient to deny KLS the relief
it seeks. Plaintiffs will be permitted to prove with lay evidence that JC experienced pain
and suffering as result of the device’s failure.

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(B) But-For Causation

KLS also argues that evidence of costs incurred and damages sustained by
Plaintiffs that would have occurred regardless of the distraction device’s failure is
irrelevant and should be excluded from trial. Evidence is relevant if the fact it tends to
prove is “of consequence in determining the action.” Fed. R. Evid. 401(b). Plaintiffs’
claims of negligence, strict products liability, and breach of the implied warranty of
merchantability entitle them to compensation only for those injuries that would not have
occurred but for the failure of the distraction device. See Bone, 179 F.3d at 1081.
KLS agrees Plaintiffs may introduce evidence of “the cost and any damages
resulting from the distractor separation and the distractor replacement surgery on June
19, 2009.” Suggestions in Support, Doc. 83, p. 3. This includes the cost of the
replacement distractor and the surgery to substitute it for the broken one. This also
includes the increase in the duration of the distraction process as a result of the broken
device and Plaintiffs’ evidence that JC was required to stay in the hospital for an
extended period because of the second surgery.
Plaintiffs assert they are “not seeking damages for the necessary procedures and
recovery periods associated with the implantation and explantation of the KLS
distraction devices.” Suggestions in Opposition, Doc. 92, p. 4. The Court therefore
grants KLS’s motion in limine to the extent it seeks to exclude evidence of damages for
these procedures and periods.
KLS argues the Court should exclude evidence JC’s lung was punctured during
the third and final surgery when the distraction devices were removed (the explantation
surgery). Plaintiffs counter that but for the device’s failure JC would have undergone
only two surgeries instead of three, so the device’s failure was the but-for cause of the
punctured lung. The Court does not agree with Plaintiffs’ argument.
In order for the jury to find that the broken device was the cause of the punctured
lung, there must be some proof that the punctured lung would not have occurred but for
the broken device. Plaintiffs have not presented any such evidence. JC’s lung was not
punctured during the additional surgery necessitated by the broken device (the
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replacement surgery). And Plaintiffs have not cited any proof that the intubation of the
breathing tube during the replacement surgery increased the probability JC’s lung would
be punctured during subsequent intubations. Without at least an increase in this
probability, there is nothing to permit the jury to find that the broken device contributed
to the occurrence of the punctured lung. Evidence that JC suffered a punctured lung
during the explantation surgery will be excluded at trial.

III. CONCLUSION

The Court grants KLS’s motion to exclude evidence that Plaintiff JC sustained a
punctured lung during the explantation surgery. The Court grants in part and denies in
part KLS’s motion to exclude evidence of damages caused by JC’s preexisting condition
and any pain and suffering JC may have experienced during the distraction procedure.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 11, 2012

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