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Colorectal Surgery Expert’s Pending Malpractice Claim is Basis for Motion to Dismiss

Wendy Ketner, M.D.

Written by
— Updated on October 12, 2022

Colorectal Surgery Expert’s Pending Malpractice Claim is Basis for Motion to Dismiss

Court: United States District Court for the Southern District of West Virginia, Charleston Division
Jurisdiction: Federal
Case Name: Hershberger v. Ethicon Endo-Surgery, Inc.
Citation: 2012 U.S. Dist. LEXIS 18799

Following two unsuccessful colostomy surgeries, the plaintiff files negligence claims against a surgical stapler manufacturer. The plaintiff also seeks to dismiss the defendant’s colorectal surgery expert. In particular, the plaintiff claims the expert’s pending malpractice action and unrelated demonstrative surgeries make his conclusions unreliable.

The court, however, deems the expert qualified. It explains he used reliable methodology and sound judgment in wading through conflicting evidence. The court explains this is the proper role of an expert witness and dismisses the plaintiff’s motion.

Facts

The plaintiff underwent colostomy surgery. The operation, however, was unsuccessful. The plaintiff later underwent a further procedure to reverse the colostomy. The second surgery was also unsuccessful. The plaintiff’s surgeons alleged they properly executed the surgery. They contended that the defendant-manufactured surgical stapler was defective. The surgeons explained the stapler did not contain staples.

The defendant maintained that the stapler functioned properly. They claimed one of the surgeons removed the stapler safety before or during surgery. Further, the defendant asserted one of the surgeons fired the stapler negligently and prematurely. The defendants retained a colorectal surgery expert witness to support their case. The plaintiff challenged the expert’s admissibility.

The Defendant’s Colorectal Expert Witness Testimony

The plaintiff argued that the colorectal surgery expert witness presented unreliable views and, therefore, inadmissible opinions. Further, the plaintiff claimed this constituted ipse dixit or “because I say so” testimony. In particular, the plaintiff sought to exclude three of the colorectal surgery expert’s opinions and two demonstrative surgeries performed in anticipation of the testimony.

The three opinions were as follows:

  1. That the stapler safety must have been inadvertently or prematurely dislodged
  2. After the first stapler firing, without an endoscope, the surgeons could not find the staples
  3. The surgeons violated the required standard of care

The plaintiff argued to exclude the first and second opinions. They asserted the expert ignored certain operation observations and surgeon testimonies. Further, the third opinion was inadmissible because the expert had a malpractice case pending against him. The defendants replied that their expert’s experience as a colorectal practitioner provided the basis for his opinions. Further, they asserted the expert relied heavily on CT scans from one month after the surgery to form his opinions.

The plaintiff also sought to exclude two demonstrative surgeries the expert performed. They claimed these procedures were dissimilar to the actual surgery in the case. The defendant explained these procedures were not intended as replications or reenactments of the first surgery. Rather, the demonstrations were illustrations of the correctly functioning stapler.

Discussion

The court noted that expert witnesses may need to sift through contradictory data and testimony in order to arrive at their opinions. Expert testimony is not inadmissible simply due to such determinations if they are well explained and reasoned. Having reviewed the parties’ respective claims and evidence, the court was convinced of the expert’s conclusions. It found the expert used reliable methodology and principles.

The court further explained whether the expert had breached the standard of care in another case was irrelevant to the admissibility here. The court noted that “demonstrations of experiments used to illustrate the principles used in forming an expert opinion are not always required to adhere strictly to the circumstances of the events at issue in the trial,” citing Gladhill v. Gen. Motors Corp. The plaintiff failed to satisfy substantial similarity. Also, the court found no admissibility concerns provided the jury was adequately instructed on the scope of the demonstrations as examples of the expert’s opinions. The court explained cross examination may address the plaintiff’s arguments.

Ruling

The court denied the plaintiff’s motion to exclude the colorectal surgery expert witness’s testimony.

Key Takeaways for Experts

This case demonstrates the importance to base all expert conclusions on peer-reviewed methodologies and industry-accepted research. The expert here was permitted to testify for this exact reason. His admissibility was despite some conflicting case facts and a less than squeaky clean record.

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