In the recent case of Primiano v. Cook, Ninth Circuit reversed the district court’s exclusion of a physician’s expert testimony on the failure of an elbow prosthesis.
The plaintiff’s expert, Dr. Weiss, testified
that the polyethylene bushing had worn through in less than eight months, “not a usual or expected circumstance.” Though finite, the typical lifespan of elbow prostheses “far exceeds” how long this one lasted. Dr. Weiss testified in his deposition that although wear starts immediately, elbow prostheses last as long as ten or fifteen years, even twenty, and the earliest he had seen them wear out was around five to eight years, varying with the patient’s activity level.
Dr. Weiss did not, however, know why the device failed.
The district court had excluded the testimony, on the theory that the mere fact that the device failed early cannot support an inference of defect; the real problem may have been that the device was inserted improperly by the plaintiff’s physician, who was also a defendant in the case.
If I were the district judge, I would probably have let Weiss’s testimony in, though I disagree with the Ninth Circuit that the judge abused his discretion in excluding it.
But what really disturbs me about the Ninth Circuit’s opinion is that it contains a great deal of loose language suggesting that Rule 702′s requirements that expert testimony testimony be “based upon sufficient facts or data,” “is the product of reliable principles and methods,” and “the witness has applied the principles and methods reliably to the facts of the case” can be met by bringing in a medical expert who relies on his “experience,” even if his testimony amounts to speculation based on very limited information. (The court engages in a typical subterfuge: instead of explaining how its view of medical testimony fits the rather clear language of Rule 702, it cites that language but focuses on precedents, including precedents from before the rule was amended. The court also to some degree conflates the issue of qualifications, itself often a problem for medical experts, with the issue of whether the expert is providing competent testimony under Rule 702).
It’s true that physicians often operate in a world of uncertainty, where no sound underlying scientific literature exists, and essentially have to make their “best guess” as to what’s good for their patients. But physicians treating their patients are in a very different position than physician who are testifying in court. The former are being paid to help their patients get well; the latter are being paid to say things that will be helpful to a party in litigation. Given the hundreds of thousands of physicians available as potential experts, who have a wide range of views, and some of whom are willing to serve as hired guns, if courts simply let medical experts testify to various theories of causation on their own say-so, at best juries will always be confronted with conflicting speculation that is impossible to penetrate, and at worst junk science will reign supreme.
bailey says:
Happens all the time in state and federal courts-speculation does reign supreme as does junk science. A doctor saying it is good enough for 75% of judges.
March 21, 2010, 11:20 amcboldt says:
Was his testimony otherwise available? That is, is there objective evidence of the lifetime of the device? If so, there is no need for an “expert” to tender the evidence.
March 21, 2010, 11:35 amThe role of the expert is to connect the dots between design, execution, and performance. Just noticing any one or more of those parts can be done by any rube off the street.
T. Gracchus says:
<blockquoteThe district court had excluded the testimony, on the theory that the mere fact that the device failed early cannot support an inference of defect;
March 21, 2010, 11:53 amOn this point the District Court clearly is mistaken, unless by “cannot support an inference” is used to mean something like ‘standing alone establishes the truth of’. While early failure does not establish defect, it does support the inference to defect. Defect is a possible reason for early failure. So it does look like the testimony might be relevant, assuming that the witness has a proper basis to offer it. It is uncontroverted that he had significant experience with the prostheses, and, according to the opinion, no challenge to his qualifications. It is clear that he was qualified to opine on whether the devices were properly implanted — so the issue is whether he was qualified to offer an opinion on whether there was unusual early failure.
yankee says:
I think calling this a “subterfuge” is excessive. For better or worse, it’s extremely common for courts to cite pre-amendment cases to interpret a statute as amended. Not going to defend that as the correct approach here, but this sort of accusation of dishonesty seems unwarranted.
March 21, 2010, 12:21 pmTuna says:
Rule 702 and Daubert really come down to being lucky with which federal judge you happen to get assigned to your case, and, to a lesser extent, which circuit you’re in.
March 21, 2010, 1:08 pmbyomtov says:
what really disturbs me about the Ninth Circuit’s opinion is that it contains a great deal of loose language suggesting that Rule 702’srequirements that expert testimony testimony be “based upon sufficient facts or data,” “is the product of reliable principles and methods,” and “the witness has applied the principles and methods reliably to the facts of the case” can be met by bringing in a medical expert who relies on his “experience,” even if his testimony amounts to speculation based on very limited information.
Agreed. It would be much better if there were literature on the failure rates of these prostheses, and I’m surprised there isn’t. Without that, isn’t the issue in this specific case how much experience Weiss actually has with them?
March 21, 2010, 1:39 pmJRC says:
This is more often a problem involving treating physicians. Too often the treating doctor is willing to give a causation opinion based upon nothing more than his personal belief or experience without regard to any scientific principles, e.g., “I believe x caused y because in my experience x causes y.”
Here, based upon the above (I didn’t read the case) I think that, if true, the fact that a prosthesis should last much longer is relevant to the issue of whether there was a defect. On the other hand, if the only basis for concluding that the prosthesis should last longer is the expert’s opinion then it should be excluded. My problem with this type of testimony is there absolutely no way to test it. He can say that they usually last longer in his patients but there is no way to determine if he is telling the truth.
March 21, 2010, 2:25 pmvic5 says:
amongst many many defects in the current tort system
the most obvious flaw is ” expert” testimony
the other problem of course is judges who are biased , corrupt or incompetent
March 21, 2010, 2:42 pmbyomtov says:
My problem with this type of testimony is there absolutely no way to test it. He can say that they usually last longer in his patients but there is no way to determine if he is telling the truth.
Well, you could ask him for a list of cases (medical, not legal), with the information as to when he installed the prosthesis, and when it failed, if it has in fact failed. That would give you at least some data, as well telling you exactly how much experience his testimony was based on.
March 21, 2010, 4:54 pmTuna says:
I’ve been in front of about 20 federal judges for various cases, and I’d say about 5 of them were non-biased and competent.
March 21, 2010, 5:38 pmvic5 says:
power corrupts and power that is not subject to review and restraint corrupts even more
March 21, 2010, 6:27 pmJRC says:
I could ask but I wouldn’t get them because of physician patient privilege, HIPAA, etc.
March 21, 2010, 9:15 pmThief says:
“Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. . . That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.” General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
March 21, 2010, 9:19 pmbyomtov says:
I could ask but I wouldn’t get them because of physician patient privilege, HIPAA, etc.
Would that extend even to anonymous data which consisted only of a list of dates of installation and failure, or to aggregated data – “I’ve installed 35 prostheses. Those which failed have lasted an average of X years, with Y years being the shortest, etc.”
March 21, 2010, 9:32 pmAnonCommentator says:
Your argument is that this kind of behavior is common. How does that make it any less “subterfugue”?
March 22, 2010, 12:52 amSk says:
“amongst many many defects in the current tort system
the most obvious flaw is ” expert” testimony
the other problem of course is judges who are biased , corrupt or incompetent”
This is key (though the original post doesn’t even address it). However unreliable ‘expert’ testimony is, giving veto power to a judge who is 1) not a scientist, and is not able to understand the scientific validity of a particular argument unless by accident, and 2) not an expert on the particular hardware in question, and thus not qualified to make this type of judgement in the first place.
Nevertheless, the argument here seems to be “expert witnesses aren’t always reliable. The unspoken fact is that judges aren’t always reliable, qualified, or scentifically schooled. Therefore, we should afford more decisionmaking authority in the judiciary.”
I thought the whole point of a trial was to allow the two sides to present witnesses, and give the two opposing attorneys the opportunity to poke holes in each other’s arguments (including each other’s witnesses arguments, their qualifications, etc).
Here’s the issue: judges and expert witnesses both make mistakes, and both have questionable qualifications in terms of their ability to make scientific or technical arguments (witnesses because they have a particular interest, judges because they are neither scientists nor technical experts). so why should more power be vested in the judges? And why would a law professor be siding with the judges rather than the experts? (if we’re going to be questioning motives, we should question EVERYBODY’s motives-not just the doctors on the witness stand…).
sk
March 22, 2010, 12:29 pmDr. T says:
If a device has a history of long-term reliability, then a failure within one year is a significant deviation. This makes it more likely that the failure was due to damage during implantation or to suboptimal implantation that led to excessive wear and tear. Since medical malpractice juries often split blame, the testimony of the expert should not have been excluded. It could mean the difference between a 50%-50% or a 90%-10% damages split between the surgeon and the prosthesis manufacturer.
March 22, 2010, 6:59 pmRoscoe Raines says:
But “possible reason” is not the test for relevance. To be relevant, evidence must make a material fact more or less likely than would be the case without that evidence, not more likely than “if the evidence were something else.” In this instance, the appellate court made the error of comparing this evidence with hypothetical “other evidence” (i.e., that the device had a normal lifespan), instead of just the absence of this evidence (i.e., no evidence of its lifespan). Knowing that the device had an abnormally short lifespan would make a defect more likely than if the device had a long lifespan, but the long lifespan is a product of lots of variables other than “lack of defect.” So, IMO, the district court had it right.
April 2, 2010, 6:58 pm