Abuse of Discretion – Expert Testimony

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7^th Circuit Court of Appeals

Case Name: Charlotte Robinson, et al. v. Davol Inc., et al.

Case No.: 17-2068

Officials: SYKES and BARRETT, Circuit Judges, and GRIESBACH, Chief District Judge.

Focus: Abuse of Discretion – Expert Testimony

C.R. Bard, Inc., manufactures a surgical mesh patch used to repair hernias by implantation. The patch consists of two pieces of mesh that surround a flexible plastic ring. During a hernia repair, the patch is folded to fit through a small incision, then the plastic ring springs back into its original shape and flattens the mesh against the abdominal wall.

Prior to the recall, Georgia Bowersock underwent surgery to repair a hernia, and her surgeon implanted a Bard patch. Roughly one year later, on October 31, 2006, she died of complications arising from an abdominal-wall abscess. Her estate and family members sued Bard and Davol Inc., the patent holder for the patch, alleging that a defect in the patch caused her death. To establish medical causation, the plaintiffs retained three experts to opine on the defect and the likely cause of Mrs. Bowersock’s death.

But the experts had trouble establishing causation. Unlike defective patches in other injured patients, Mrs. Bowersock’s patch did not adhere to her bowel or perforate her organs with a broken, sharp edge. One expert tried to present a new theory of causation: the patch had “buckled,” forming a stiff edge that rubbed against and imperceptibly perforated her internal organs. The defendants moved to exclude the expert testimony. The judge granted the motion, finding that the “buckling” theory was not sufficiently reliable. Lacking expert testimony to establish causation, the plaintiffs could not prove their case, and the judge entered summary judgment for Bard and Davol.

We affirm. The novel theory of causation was not peer reviewed, professionally presented, consistent with Mrs. Bowersock’s medical records or autopsy, or substantiated by other cases. The judge therefore did not abuse his discretion in excluding the expert testimony. Summary judgment for the defendants necessarily followed.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.