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Eighth Circuit Affirms Exclusion of Expert Who Contradicted His Prior Testimony

The U.S. Court of Appeals for the Eighth Circuit recently declared that experts must, at the least, address obvious alternate causes and avoid contradicting themselves when submitting affidavits long after their depositions have been taken. The Eighth Circuit affirmed the entry of summary judgment for DePuy Orthopaedics, Inc., in a product liability case involving a fractured hip stem. The court found that the plaintiff’s expert’s defect and causation testimony was properly excluded by the U.S. District Court for the Eastern District of Missouri in Redd v. DePuy Orthopaedics, Inc., 2017 WL 2859536 (8th Cir. July 5, 2017).

Rules, ChalkboardIn Redd, the plaintiff, a 5-foot-2 inch woman weighing 302 pounds when her total hip replacement was performed, had for years taken immunosuppressant drugs that compromised her bone stock. When the hip stem was removed, the surgeons discovered a lack of bone ingrowth at the top of the stem. Given her risk factors, the plaintiff’s doctors were aware of this possibility.

The plaintiff filed suit, asserting negligence and strict liability claims based on product defect and failure to warn with respect to the initial hip stem implant. The plaintiff hired a metallurgy expert to opine about the cause of the fracture. The expert “had done research in fatigue fracture initiation in metal objects,” but he had never performed this research “in metal objects implanted in the human body.” His analysis considered metallurgical factors, but not any biomechanical factors and stated that a manufacturing defect caused the fracture even though he “did not review any records related to the manufacturing process . . . .” He declared that the “premature and sudden fatigue fracture” of the plaintiff’s hip stem was caused by the improper “phase” of the metal along with the “grain size” of the metal alloy.

After the close of discovery, DePuy moved for summary judgment and the exclusion of the expert’s testimony under Federal Rule of Evidence 702 and Daubert. In response, the plaintiff submitted an affidavit from the expert testifying that the “phase” of the metal violated DePuy’s own specifications and that environmental factors would be “secondary in the cause of the fracture when the material is inherently defective to begin with.” DePuy responded with a motion to strike the expert’s affidavit on the grounds that it impermissibly supplemented or changed the expert’s opinion after the close of discovery.

The District Court granted DePuy’s motion to exclude portions of the expert’s testimony, concluding that, though he was qualified in the area of metallurgy, he lacked a scientific or factual basis “to conclude that there was a manufacturing defect or to opine on causation.” The District Court found that the expert failed to consider the issue of the forces that were exerted on the implant inside the plaintiff’s body. It also granted the defendant’s motion to strike the expert’s affidavit on the grounds that his statements directly contradicted his deposition testimony, saying “[A] party cannot change testimony just to avoid summary judgment or a Daubert motion.” Without any expert testimony on defect or causation, the plaintiff could not avoid summary judgment.

On appeal, the Eighth Circuit affirmed the District Court’s holdings. The Eighth Circuit held that the district court had not abused its discretion when it excluded the affidavit, which “arguably crossed the line between clarifying prior testimony and changing prior testimony.” The court also concluded that the District Court acted within its discretion in excluding the expert’s testimony on causation and defect. The court explained that, while “an expert need not rule out all possible causes of an injury, an expert nonetheless should adequately account for obvious alternative explanations.” In this case, the expert failed to consider the impact of the biomechanical forces exerted on the implant as it was placed in the plaintiff’s body.

Redd builds on prior case law, confirming that experts must address obvious alternate causes and avoid directly contradicting themselves to withstand a Daubert challenge. As demonstrated in this case, such standards help prevent scientifically flawed claims from going to a jury.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 212


About this Author

Jan Carol Litigation Attorney

Jan M. Carroll, retired of counsel in the Indianapolis office of Barnes & Thornburg, represented businesses and individuals in state and federal litigation. Her experience encompassed product liability (medical devices, pharmaceuticals, industrial equipment, agricultural products, and consumer goods); professional liability (doctors and lawyers); real estate and land use (eminent domain, premises liability, historic preservation and zoning); and commercial disputes. She also represented business owners, corporate executives and other high net worth individuals in marital dissolutions...

Joseph Eaton Environmental Attorney

Joseph G. Eaton is a partner in the Indianapolis office of Barnes & Thornburg and co-chair of the firm's Toxic Tort Practice Group.

Product Liability: Toxic Tort, Chemical Product Liability and Environmental Litigation

Joseph has represented clients in litigated matters throughout the United States involving chemical product liability actions, including plaintiffs' personal injury and property damage litigation relating to alleged toxic products. He presently assists several national defense counsel teams representing industrial, chemical and pesticide manufacturers in toxic tort and chemical product liability claims across the country. He also assists other clients in chemical product liability actions, in which capacity he has litigated in more than 35 state and federal courts. His court appearances include challenges to expert testimony and Daubert and Fryehearings.

Joseph also represents clients in environmental exposure and contamination matters, including cases arising under federal and state environmental statutes.

Joseph regularly advises clients regarding recent developments involving the exclusion of expert witnesses under state and federal standards. Joseph is a frequent speaker at local and national seminars on issues relating to expert witnesses and is currently on the advisory board of the Bureau of National Affairs' Expert Evidence Report.

Product Liability: Medical Device and Pharmaceutical Litigation

Joseph also devotes his practice to the defense of medical device product liability personal injury actions. He assists on a team as national coordinating counsel team for a major Indiana-based medical device manufacturer and, as such, works extensively with expert witnesses on cases throughout the United States. Joseph's experience also includes coordinating and managing litigation involving surgical instruments, shoulder, ankle, spine, knee and hip products. In 2015, Joseph obtained a defense verdict for a medical device manufacturer after a six day jury trial in a product liability matter pending in New Jersey state court. 

He also has extensive experience litigating product liability matters involving pharmaceutical products including consolidated litigation involving a prescription antibiotic.

Since 2008, he has been included in The Best Lawyers in America in the field of product liability litigation and is also included on the Indiana Super Lawyers list. Joseph has also been listed as a Recognized Practitioner in Chambers USA: America's Leading Lawyers in Business since 2016.

Complex Commercial Litigation, Class Actions and False Claims Act

Joseph has also represented industrial, chemical and medical device manufacturers as well as release of information providers in complex commercial litigation, UCC litigation and class action litigation. He also has experience in defending military/government contractors and related aerospace industries in matters involving qui tam litigation and the False Claims Act.

He is admitted to practice in the state of Indiana, United States District Courts for the Northern and Southern Districts of Indiana, and the U.S. Courts of Appeals for the Fourth, Seventh, Eighth and Eleventh Circuits.

Oni N. Harton, Barnes Thornburg, Indianapolis, Medical Device attorney, Toxic Tort Practice lawyer

Oni N. Harton is an associate in Barnes & Thornburg LLP's Indianapolis office where she is a member of the firm's Litigation Department as well as the Drug and Medical Device and Toxic Tort Practice Groups.

Ms. Harton's practice focuses on commercial disputes, product liability defense, and toxic torts. She has also defended financial institutions against alleged violations of state and federal consumer protection statutes including the Fair Credit Reporting Act, Truth In Lending Act, Telephone Consumer Protection Act, and Real Estate...