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Amanda Smith and James Smith v. I-Flow Corp

May 3, 2011

AMANDA SMITH AND JAMES SMITH, PLAINTIFFS,
v.
I-FLOW CORP., DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge

MEMORANDUM OPINION AND ORDER

Amanda Smith and James Smith have sued I-Flow Corporation alleging that Mrs. Smith suffered a disabling injury after using a pain pump manufactured by I-Flow. The Smiths allege that the pain pump injected an anesthetic drug, Marcaine, into her left shoulder joint and thereby caused a disabling injury known as chondrolysis.*fn1 Their claims against I-Flow are for negligence, negligent misrepresentation, fraud, strict tort liability, failure to warn, breach of implied warranty, and loss of consortium. I-Flow has filed a combined motion to exclude the opinions of the Smiths' expert witnesses and for summary judgment. For the reasons stated below, the Court grants in part and denies in part I-Flow's motion to exclude opinions and denies its motion for summary judgment.

Background

This opinion assumes familiarity with the factual background contained in the Court's previous decision denying I-Flow's motion to strike the Smiths' request for punitive damages. See Smith v. I-Flow Corp., - F. Supp. 2d -, No. 09 C 3908, 2010 WL 4872985, at *1 (N.D. Ill. Nov. 29, 2010) ("Smith I").

Discussion

I-Flow argues that the opinions and testimony of the Smiths' expert witnesses are inadmissible. It also contends that the Smiths have not shown that there is a genuine issue of fact regarding whether (1) continuous infusion of anesthetics via a pain pump causes chondrolysis or (2) I-Flow knew or should have known of a risk that continuous infusion could cause chondrolysis prior to Mrs. Smith's surgery in January 2006. The Court will consider the admissibility of the Smiths' expert testimony before turning to I-Flow's motion for summary judgment.

1. I-Flow's motion to bar the testimony of the Smiths' expert witnesses

The admission of expert witness testimony is governed by Federal Rule of Evidence 702 and the principles set forth by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, a court "must determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (internal quotation marks omitted). The court serves a "gatekeeping" function to "ensur[e] that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. As such, the court does not decide whether the expert's views are correct, but instead "is limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In making this determination, the court may consider a number of factors, including (1) whether the scientific knowledge has been, or can be, tested; (2) whether the proffered theory or technique has been subjected to peer review or published; (3) the known or potential rate of error; and (4) whether the theory or technique has gained general acceptance in the relevant field. Daubert, 509 U.S. at 592-94.

I-Flow seeks to bar expert testimony from three witnesses. Two of them, Drs. Mark Hutchinson and Jon Sekiya, offer testimony on general causation (pain pumps can cause chondrolysis) and specific causation (I-Flow's pain pump caused Mrs. Smith's chondrolysis). The third witness, Dr. Peggy Pence, offers testimony on I-Flow's duties as a medical device manufacturer.

a. Dr. Mark Hutchinson

The Smiths offer Dr. Hutchinson's testimony as proof of both general and specific causation. I-Flow argues that Dr. Hutchinson's testimony must be excluded for two reasons: first, he is not qualified because his opinions were developed for the purpose of litigation; and second, his conclusions are not supported by the data upon which he relies, thus rendering his opinions unreliable.

The Court concludes that Dr. Hutchinson has the education, training, experience, and skills necessary to testify as an expert on whether continuous infusion of anesthetic via a pain pump can cause chondrolysis. He is a board-certified orthopedic surgeon and a tenured professor of orthopedics at the University of Illinois at Chicago. He has published numerous articles and presentations on subjects relating to various types of shoulder injuries. Additionally, he serves as an editor or peer reviewer for professional journals in his area of expertise, including the Journal of Bone and Joint Surgery, the American Journal of Sports Medicine, the British Journal of Sports Medicine, Medicine and Science in Sport and Exercise, and the Physician and Sports Medicine. Dr. Hutchinson does not have particular expertise with regard to chondrolysis, but this does not categorically preclude him from testifying about chondrolysis and its causes given that "[d]ifferences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility." Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009); see also Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence").

Dr. Hutchinson is also not disqualified from testifying simply because he was retained to do so for the purpose of litigation. As his expert report makes clear, Dr. Hutchinson reached his opinion in reliance upon dozens of articles and studies that were "either published in peer reviewed journals, presented at national or international conferences, or [contained in] leading textbooks that orthopaedic surgeons regularly rely upon." Pls.' Resp., Ex. 15 at 6. In other words, his views are "based directly on legitimate, pre-existing research unrelated to the litigation." Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) ("Daubert II"). Such evidence "provides the most persuasive basis for concluding that the opinions he expresses were derived by the scientific method," and it is not the Court's role to assess the validity of the conclusions Dr. Hutchinson drew from this evidence. Id.; Smith, 215 F.3d at 718 ("The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact"). The fact that Dr. Hutchinson was not personally engaged in this research does not render his opinion inadmissible. See Cummins v. Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996) (rejecting the argument that "hands-on testing is an absolute prerequisite to the admission of expert testimony.").

Finally, the Court rejects I-Flow's argument that "[t]he absence of reliable science concluding that chondrolysis is caused by continuous infusion therapy" renders Dr. Hutchinson's causation opinions unreliable. Def.'s Mem. at 16. As I-Flow concedes, Dr. Hutchinson relied upon several different categories of research and data in forming his opinion, including case reports and series, in vitro studies, and in vivo animal studies. See, e.g., Andreas H. Gomoll et al., Long-Term Effects of Bupivacaine on Cartilage in a Rabbit Shoulder Model, 37 Am. J. Sports Med. 72 (Jan. 2009); Jason Dragoo et al., The Effect of Local Anesthetics Administered Via Pain Pump on Chondrocyte Viability, 36 Am. J. Sports Med. 1484 (Aug. 2008); B. Hansen & C. Beck, Postarthroscopic Glenohumeral Chondrolysis, 35 Am. J. Sports Med. 1628 ...


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