It is not as if we are delighted to see efforts to resuscitate breast implant litigation, but we won’t groan when the rulings are as good as they are in Laux v. Mentor Worldwide, LLC, No. 2:16-cv-01026-ODW(AGR) (C.D. Cal. Nov. 8, 2017). Here, we are talking about Daubert rulings. (The court also issued good preemption rulings that might be the subject of a separate post.) The Laux court’s Daubert order is not up on Westlaw or Lexis yet, but it will be, and that is good news for defendants and bad news for plaintiffs.
The plaintiff in Laux alleged that she suffered pain and other injuries as a result of moldy silicone breast implants. Her allegations depended upon opinions by a three experts: Kolb, Blais, and Brawer. At least two of these experts are repeat players. The other might be as well, but we confess to being a little out of touch with this litigation. One plaintiff expert (Kolb) explanted the implants and concluded that they were leaking bilaterally. Another (Blais) examined the implants and concluded that they had defective valves, causing them to leak bilaterally. The moldy saline implant theory has persisted since the turn of the century, largely propped up by a book, The Naked Truth About Breast Implants, written by – ta da! – one of these experts. Another one of the experts testified long ago at the FDA panel hearings and raised the theory back then that breast implants contained a manufacturing defect that either (1) allowed bi-directional flow of saline and bodily fluid in and out of the valves such that the saline became contaminated by “toxic mold” that then colonized and leached “biotoxins” into plaintiff’s body; or (2) allowed the silicone shell or toxins/metals to flake off in plaintiff’s tissue. To our moldy eyes, this theory seems driven more by litigation than science. Is our cynicism based at all on the fact that these selfsame experts seem to be actively working with plaintiffs’ counsel to resurrect breast implant litigation, claiming breast implants cause systemic autoimmune disease despite dozens of epidemiological studies to the contrary? Yes. Yes, it is.
In any event, these experts’ sparkling resumes did not dazzle the Laux court. Their methodologies were even weaker than their qualifications, which, as you will see, is really saying something.
By the way, this is hardly our favorite trio. Here are just a few we prefer:
- Harry, Hermione, and Ron
- Kirk, Spock, and Bones
- The Three Musketeers (literary or candy version)
- The Three Fates
- Three Dog Night
- Three’s Company
- The Three Amigos
- Tinkers to Evers to Chance
- The Good, the Bad, and the Ugly
- The Dude, Walter, and Donny
- Willie, Mickey, and The Duke
- ZZ Top
- Emerson, Lake, and Palmer
- The Police
- Destiny’s Child
- The Three Tenors
- Moe, Larry, and Curly. (Heck, we also prefer Moe, Larry, and Shemp to any assortment of litigation/expert stooges.).
Anyway, here, in brief, is how the Laux court concluded that the three plaintiff expert (three blind mice?) opinions could not survive a Daubert challenge:
The court deemed Kolb to be insufficiently qualified to provide the proposed testimony. Big surprise: a plastic surgeon is not competent to testify about immunology, mycology (the study of fungi), or infectious disease. Moreover, Kolb’s methodology, such as it was, was unreliable. Yes, the “differential diagnosis” incantation was muttered by this expert, but to no effect. Kolb’s expert report stated that the plaintiff had developed biotoxin disease from defective implants, and that “Plaintiff had no other environmental mold exposure to account for these symptoms.” Oops. That premise was directly contradicted by the plaintiff’s earlier statement that she was exposed to mold found in her bedroom closet and mother’s home. Further, Kolb’s failure to test for TGF beta 1 also prevented her from ruling out environmental exposure from an objective perspective. The court decried Kolb’s “[u]nexplained selective use of the facts” which failed “to satisfy the scientific method.” None of Kolb’s theories had been tested, peer reviewed, or generally accepted by the scientific community. Her “inferential leap” from the plaintiff’s symptoms to the conclusion that the plaintiff suffered from biotoxin disease was unsupported by any peer-reviewed scientific literature or research. Adios, litigation expert amigo #1.
Blais is a chemist, not a microbiologist, pathologist, medical doctor, or engineer. Blais has not published any of his theories on bacterial or fungal colonization of saline implants in peer-reviewed literature. So much for qualifications. Reliable methodology was also lacking. Blais supplied a “Failure Analysis Report,” but the real failure was in the expert’s purported analysis, not the product. In developing his opinions for this case, Blais did not test the plaintiff’s breast implants, tissues, or blood, and did not establish a scientific basis for his conclusion that the plaintiff’s injuries were caused by the defendant’s breast implants. The defendant argued that Blais’s “‘methodology’ essentially consists of looking at explanted breast implants, sometimes with the aid of a microscope, making a few notes and drawing pictures of what he claims to see.” Not so impressive. Blais took no measurements of the valves to support his opinion they contained manufacturing defects. Rather, Blais stated that he “eyeball[ ed]” the valves to determine they were faulty. Still not impressive. In addition (or subtraction?), Blais did not possess the defendant’s valve design specifications when he concluded that the valves on the plaintiff’s implants were defective. Instead, Blais utilized old documents and his own memory. The Laux court concluded, as had other courts in earlier decisions, that Blais’s proffered testimony should never reach a juror’s ears. As Harry Potter might say, expulsus expertous hackus nonsensicus.
There were some technical problems with Brawer’s expert report. It recited “a toxicology opinion with no data in support of that opinion whatsoever.” (emphasis in original) Brawer opines that there was “breast implant toxicity,” but neglects to state what toxic substance was at issue. That would seem to be a problematic gap in the analysis. The Laux court could find no support for Brawer’s “because I said so” – in lawyerese, we sometimes call it ipse dixit — conclusion regarding breast implant toxicity. Thus, the court held that Brawer’s report “fails to satisfy several requirements of Rule 26, and his report is so lacking of scientific principles and methods that the Court cannot find his opinions reliable or helpful in this case.”
Three up, three down. It reminds us of a typical inning thrown by the late Roy Halladay.
Meanwhile, three cheers to Dustin Rawlin and Monee Hanna of Tucker Ellis, who brought this ruling to our attention.