Alexander v. Smith & Nephew, P.L.C.
| Decision Date | 04 May 2000 |
| Docket Number | No. 96-CV-1004-K(E).,96-CV-1004-K(E). |
| Citation | 98 F.Supp.2d 1276 |
| Parties | Jerry ALEXANDER, Cipriano Alvarado, Lavonne Anderson, John Bennett, Marty Charles, Howard Childers, Coy Cook, Scott Cook, Michael Cox, Shirley Davis, Edwin Dean, Lois Dentis, Sheri Dillman, Preston Dugan, James Emerson, Jimmy Ford, Kenneth Gaddy, Teresa Gladd, Richard Higgins, Judy Hilker, Danny Jackson, James Keeling, Danny Kelly, Diane Kelly, Dorothea Kidney, William Knight, Barbara Larue, Larry Lee, Michael Marquez, Dale McDaniel, Janie Miller, Gilbert Nail, Darrin Prock, Homer Purcell, Donna Rambo, James Ready, Larry Scarbrough, Alfred Seip, Ray Shivers, Harold Skaggs, Bobby Smith, David Smith, Timothy Snider, Joelle Struble, Victor Taylor, Victoria Vaughn, Steve Wegner, Dean Wise, Clarence Woods, Michael Siler, and Cleotis Raines, Plaintiffs, v. SMITH & NEPHEW, P.L.C., and Smith & Nephew Richards, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
Gary Allen Eaton, Eaton & Sparks, Tulsa, OK, Michael Ross Green, Tulsa, OK, William Earl Sparks, Tulsa, OK, for Plaintiffs.
Richard Mark Eldridge, Thomas E. Steichen, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, OK, James B. Irwin, Sally I. Gaden, Montgomery Barnett Brown Read Hammond & Mintz LLP, New Orleans, LA, for Defendant.
Before the Court are Defendant Smith & Nephew Richards, Inc.'s ("Defendant's") motions for summary judgment and to exclude or limit the testimony of Jerry D. McKenzie, M.D., as to Plaintiff William Knight ("Plaintiff").
This is a products liability case concerning the Rogozinski Spinal Rod System manufactured by Defendant, presently on remand from In re Orthopedic Bone Screw Products Liability Litigation, multidistrict litigation number 1014, in the United States District Court for the Eastern District of Pennsylvania. Plaintiff is suing Defendant for injuries allegedly sustained due to the Rogozinski system implanted into his back in 1993. Plaintiff's theories for liability include manufacturers' products liability, negligence, negligence per se, failure to warn, breach of express and implied warranties, and fraud.
Plaintiff first injured his back in January 1991, when he slipped and fell in a store. Plaintiff again injured his back by slipping and falling in September of the same year. Plaintiff sustained a more severe injury in December 1992, when he fell while unloading a truck at work. Following this accident, Plaintiff experienced constant low back pain, worsened by bending, stooping, twisting, and lifting, and tingling paresthesia and numbness into his legs bilaterally, which was more severe on his left side. Plaintiff underwent rehabilitation therapy, during which time he also experienced problems with his bladder and sleeplessness. In June 1993, Dr. Hawkins found Mr. Knight to be suffering from a decrease in disc space and height at L5-S1; degenerative changes and desiccation of both L4-5 and L5-S1 discs; bulging centrally of the L4 disc; and possible herniation at L5-S1, primarily central. Following a year of conservative treatment and an episode of severe muscle spasms and pain, Mr. Knight expressed a wish to have surgery. Dr. Hawkins discussed the risks, benefits, and possible complications of this surgery with Mr. Knight and his wife. On January 31, 1994, Dr. Hawkins performed a decompressive lumbar laminectomy with medial facetectomies; foraminotomies at L4-5 and L5-S1; discectomy at L5-S1; open reduction and segmental fixation of the L4-5 and L5-S1 levels using the Rogozinski Spinal Rod System; bilateral lateral mass fusion of L4-5 and L5-S1; excision of spinous processes at L4 and L5; and harvest and use of left corticocancellous iliac bone graft for the fusion mass. Dr. Hawkins also prescribed a bone growth stimulator. Although Mr. Knight had a small accident less than a month following surgery, an x-ray showed anatomic alignment, no fracture deformities, and intact hardware. Although Plaintiff's fusion was slow to ossify, he experienced decreased pain and x-rays showed excellent fixation and alignment and eventually apparently solid fusion. Mr. Knight, however, continued to have pain and he eventually chose to have the Rogozinski device removed. On February 8, 1995, Dr. Hawkins performed a removal of bone and bursa around the edges of the implant, screws, and couplers at L4-5 and S1 bilaterally; removal of the Rogozinski device from L4-5 and S1; and decompression of lumbar and redo laminectomy at L4-5 and S1 left. Dr. Hawkins further explored the lateral fusion at L4-5 and S1 and found it to be solid. Plaintiff argues that the Rogozinski system was not mechanically strong enough to support his spine during the fusion process, did not promote fusion or provide any medical benefit, and that it aggravated, if not caused, his medical problems, primarily continued back and leg pain, sexual and bladder dysfunction, and anxiety and depression.
Defendant seeks to exclude the testimony of Dr. Jerry D. McKenzie, Plaintiff's medical causation expert, for failure to satisfy Fed.R.Evid. 702. Defendant argues that Dr. McKenzie is not qualified to testify as to his expressed opinions, his opinions are not sufficiently reliable to satisfy Rule 702, and his opinions are irrelevant to the case.
Fed.R.Evid. 702 authorizes a "witness qualified as an expert by knowledge, skill, experience, training, or education" to testify as to "scientific, technical, or other specialized knowledge." Testimony is admissible under Fed.R.Evid. 702, if it "rests on a reliable foundation and is relevant." See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In making its initial determination of reliability, the Court has broad latitude to consider whatever factors the Court finds useful, and the particular factors will depend on the unique circumstances of the expert testimony involved. See id. at 152, 119 S.Ct. 1167. Factors mentioned in Daubert and Kumho include the following: (1) whether the reasoning or methodology underlying the expert's opinion has been or could be tested; (2) whether the reasoning or methodology has been subject to peer review and publication; (3) the known or potential rate of error; and (4) the level of acceptance of the reasoning or methodology by the relevant professional community. See id. at 149-52, 119 S.Ct. 1167; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). These factors are not necessarily applied in every case and are not exclusive of other factors. See Kumho, 526 U.S. at 150, 119 S.Ct. 1167. An expert may rely on facts and data not in evidence to the extent reasonably relied upon by experts in his field. See Fed.R.Evid. 703. Rule 702 was intended to liberalize the introduction of relevant expert evidence and such testimony is subject to being tested by "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The Court also must recognize that expert witnesses have the potential to "be both powerful and quite misleading." Id. at 595, 113 S.Ct. 2786.
Dr. McKenzie does not qualify as an expert to testify as to the causation of Plaintiff's ailments. Dr. McKenzie's report indicates that he proposes to testify that (1) the Rogozinski device did not provide any medical advantage to Mr. Knight; (2) he developed a localized chronic inflammatory response from the device that caused fibrous reactive scar tissue and foraminal stenosis; (3) this reaction resulted in nerve root adhesions and chronic severe lumbar pain with radiating pain into both lower extremities, loss of sensation in the buttocks and lower extremities, difficulty walking, loss of motion in the lower back, and chronic pain, which further caused anxiety and depression; (4) the destruction of the normal architectural structure of the lumbar spine in order to insert the device resulted in the increased debility and instability of Mr. Knight's lumbar spine; and (5) an examination of the Rogozinski device explanted from Plaintiff indicates corrosion and abrasion.
The simple possession of a medical degree is insufficient to qualify a physician to testify as to the advantages of an spinal fixation device, the medical causation of spine-related ailments, or the mechanical functioning of an orthopedic implantation device. Plaintiff cites to Wheeler v. John Deere Co., which states that "an expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight." 935 F.2d 1090, 1100 (10th Cir.1991). This opinion and the other federal cases cited by Plaintiff, however, are pre-Daubert.1 A blanket qualification for all physicians to testify as to anything medically-related would contravene the Court's gate-keeping responsibilities.2
Dr. McKenzie's qualifications even fail to satisfy the Fifth Circuit's quite liberal qualification test. That Circuit finds that, while a completely unqualified expert should not testify, Daubert focuses instead on relevancy and reliability. See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000). Therefore, "[a]s long as some reasonable indication of qualifications is adduced the court may admit the evidence without abdicating its gate-keeping function." Id. As more fully set out below, Dr. McKenzie's qualifications fail to satisfy even this minimal test.
Dr. McKenzie's experience as an emergency room physician and in legal medicine for workers' compensation injuries does not qualify him to give the opinions to which he proposes to testify. Dr. McKenzie has been licensed as a...
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