Williams v. Mast Biosurgery U.S. Inc.

• Decision Date: 30 June 2011
• Docket Number: No. 10–12578.,10–12578.
• Parties: Wanda WILLIAMS, Plaintiff–Appellant,v.MAST BIOSURGERY USA, INC., a wholly owned subsidiary of Mast Biosurgery AG, the parent company, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

644 F.3d 1312

85 Fed. R. Evid. Serv. 952

23 Fla. L. Weekly Fed. C 56

Wanda WILLIAMS, Plaintiff–Appellant,

v.MAST BIOSURGERY USA, INC., a wholly owned subsidiary of Mast Biosurgery AG, the parent company, Defendant–Appellee.

No. 10–12578.

United States Court of Appeals, Eleventh Circuit.

June 30, 2011.

Joseph D. Weathers, Justin Barrett Allegood, Robert Daniel Jewell, Moultrie, GA, for Plaintiff–Appellant.Michael James Bonfanti, John Edward Herndon, Jr., Conroy, Simberg, Ganon, Krevens, Abel, Lurvey, Morrow & Schefer, PA, Tallahassee, FL, A. Hinda Klein, Conroy, Simberg, Ganon, Krevens, Abel, Lurvey, Morrow & Schefer, PA, Hollywood, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Georgia.Before TJOFLAT, WILSON and RIPPLE,^* Circuit Judges.RIPPLE, Circuit Judge:

Wanda Williams brought this diversity action in the United States District Court for the Middle District of Georgia against Mast Biosurgery USA, Inc. (“Mast”), a medical device manufacturer. She sought relief under Georgia products liability law. After barring certain testimony that Ms. Williams had attempted to offer in order to establish an element of her claim, the district court entered summary judgment for Mast. We conclude that the district court did not err in its evidentiary rulings and that Ms. Williams has failed to introduce evidence sufficient to establish the manufacturing defect that she alleged. Accordingly, we affirm the judgment of the district court.

IBACKGROUND

A. Facts

In 2006, Ms. Williams sought treatment for a painful, undiagnosed gynecological condition that was suspected to contribute to infertility. An ultrasound revealed a large ovarian cyst. Ms. Williams underwent a laproscopic procedure to drain the cyst. During the procedure, Dr. Adcock, her gynecologist, observed within Ms. Williams's abdomen significant dense adhesions that had resulted from a prior surgery some years before. He further observed that these adhesions “were suspicious for malignancy or something to that effect.” R.37, Ex. 1 at 48.

To address further these observations, Dr. Adcock performed an exploratory laparotomy on August 22, 2006. During this second procedure, he biopsied Ms. Williams's peritoneum and both ovaries and removed “extensive adhesions of [the] sigmoid and rectum to the posterior uterine fundus.” Id. at 49 (internal quotation marks omitted). To prevent new adhesions from forming, Dr. Adcock placed four pieces of SurgiWrap in Ms. Williams's abdomen. SurgiWrap is a product designed and produced by Mast. It is marketed as a bioresorbable barrier used to prevent post-surgical adhesions. Dr. Adcock believed that preventing further adhesions between Ms. Williams's organs could have a positive effect on her fertility.

One month after the August 22 procedure, Ms. Williams returned to Dr. Adcock's office. She presented a number of symptoms, including persistent diarrhea, fever and pain in the lower left quadrant of her abdomen. Observing that she “looked really sick,” Dr. Adcock admitted her to the hospital and ordered tests to ascertain the reason for her distress. Id. at 81. After ruling out various causes of her symptoms, he referred her to Dr. George Yared, a gastroenterologist, for a colonoscopy. During the colonoscopy, Dr. Yared observed what he described as several stiff, hard and brittle pieces of plastic in Ms. Williams's colon, some as large as fourteen to eighteen millimeters. He removed two large pieces, but was unable to remove other pieces embedded in the wall of the colon. He suspected the material was the SurgiWrap used by Dr. Adcock during the August 22 procedure. The day following the colonoscopy, Ms. Williams underwent, at Dr. Yared's recommendation, a further exploratory procedure by Dr. Robert Brown, a general surgeon. In addition to cleaning out the significant infection in her pelvis, Dr. Brown performed a partial sigmoid colectomy to remove a damaged section of her colon, an appendectomy and a colostomy formation. He found and removed multiple small pieces that he believed were a foreign, clear, plastic-like substance. A pathologist, Dr. Robert Nelms, Jr., examined the specimens and described the material as stiff and thick.

The foreign bodies removed from Ms. Williams were not subjected to any chemical or other testing to determine their identity or composition.

B. District Court Proceedings

Ms. Williams filed a complaint against Mast seeking damages for her injuries on a strict products liability claim. She contended that the SurgiWrap used in her procedure had a manufacturing defect that caused it to perform in a manner other than as intended.

1. Evidentiary Matters

During discovery, Mast moved to exclude certain testimony offered by Ms. Williams's treating physicians. It contended that they could not serve as experts. Preferring to wait until the depositions of the treating physicians had been taken, the court declined to rule on the motion. Mast therefore renewed its motion after the depositions were taken. It argued both that Ms. Williams had failed to abide by the procedural rules regarding expert designation and that the testimony failed to meet the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Finally, Mast filed a motion for summary judgment, contending that Ms. Williams had not produced any admissible evidence that the SurgiWrap suffered from any manufacturing defect or that SurgiWrap was the cause of any injury to her.

The district court first granted in part and denied in part the motion to exclude testimony. The court evaluated the deposition of each physician independently, first to determine whether the testimony was lay or expert and then, if expert, to determine whether it was admissible under Daubert.

As to Dr. Adcock, the court ruled that he had offered admissible lay testimony regarding Ms. Williams's condition and his treatment of her. It then concluded that Dr. Adcock's further statements that, in his opinion, SurgiWrap had not dissolved as it was supposed to do and had instead become hardened shards of plastic were expert opinions. The court explained that it had “serious doubts,” R.52 at 5, regarding whether Dr. Adcock was qualified to offer an opinion on this matter, given his limited experience with the product, his admissions that he had not reviewed medical literature about it or conducted any tests, and his lack of expertise in plastics generally. Nevertheless, the court considered whether his testimony would be reliable and concluded that it would not. The court, therefore, barred Dr. Adcock's proffered testimony that SurgiWrap did not perform as intended and instead had hardened. It also refused to allow his testimony that the material removed from Ms. Williams was SurgiWrap.

Turning to the testimony of Dr. Yared, the district court concluded that he too would offer a mix of lay and expert testimony. However, the court ruled that Dr. Yared's expert opinion that Ms. Williams's injuries were caused by the foreign bodies he had removed was admissible. Unlike Dr. Adcock, Dr. Yared had followed an established methodology, differential diagnosis, to arrive at his conclusion about causation. Using this method, he had considered numerous potential causes of the fistula, ruled out all but the foreign body and “ruled in” the foreign body as a potential cause. Id. at 11. Accordingly, Dr. Yared was permitted to testify not only about his observations, but also about causation. He was barred, however, from testifying that the foreign body was SurgiWrap “as he has no basis for that testimony.” Id.

With respect to Dr. Brown's testimony, the court determined that it was lay testimony and noted that he had admitted that “he did not know what caused the perforation” in Ms. Williams's colon. Id. at 12.

Finally, as to Dr. Nelms's testimony, the court observed that he had produced a report indicating that the foreign materials removed from Ms. Williams were SurgiWrap. The court noted that his deposition testimony clarified that this statement in his report was based solely on the label on the sample provided to him; he had done nothing to verify the composition of the foreign body. The court determined that he would not be permitted to testify that the material he had inspected was SurgiWrap because any such opinion would not be reliable.

The court ruled therefore that only Dr. Yared would be permitted to give opinion testimony. It further declined to bar that testimony on the basis of the procedural challenges raised by Mast. It ruled that, because Dr. Yared was a treating physician who had been deposed extensively on the subjects in question, exclusion was not warranted, despite the failure of the plaintiffs to abide by the designation requirements of Federal Rule of Civil Procedure 26. See id. at 11 n. 6.¹

2. Ruling on Summary Judgment

In a separate order, the court granted summary judgment to Mast. The court noted that, under Georgia law, a plaintiff bringing a strict products liability claim based on a manufacturing defect was required to produce evidence from which a jury could conclude: (1) that the product was defective and (2) that the defect caused the plaintiff's injury.

The court reviewed the deposition testimony and concluded that Ms. Williams had produced no admissible evidence of a defect. Specifically, the court noted that only Dr. Adcock had testified that the product was defective and that his testimony on that issue had been barred. Accordingly, summary judgment was entered for Mast. The court did not reach Mast's alternative arguments that Ms. Williams had failed to produce evidence of causation.

Ms. Williams now appeals.

IIDISCUSSION

Ms. Williams raises two contentions in this appeal. First, she submits that the district court erred in limiting the testimony of her physicians. Second, she contends that she presented sufficient evidence under Georgia...