Some of us DDL bloggers have admitted to occasionally choosing our subject case based on its length. In theory a shorter case is less complicated, has less to analyze, and takes less time to write up. In theory. In reality, if there is not enough “there” there, drafting a compelling post can require more creative juices than writing about a meaty case. Hence our random detours into pop culture, music, movies/TV, vacations, the weather, pets, and families. So short does not always mean easy—unless you are talking about a 2-sentence ipse dixit expert opinion. Then short equals easy to dismiss.

The woefully deficient, conclusory expert report was the subject of the decision in James v. Coloplast Corp., 2022 U.S. Dist. LEXIS 173766 (D. Minn. Sep. 26, 2022). It is a pelvic mesh case decided under Oklahoma law. Plaintiff suffered complications such as pain and urinary frequency/urgency both before and after implantation of the pelvic mesh. Id. at *3-4. Complaints of lower back and pelvic pain led to explantation of the device, but her symptoms continued. Plaintiff had a complex pre-implantation medical history that included multiple abdominal surgeries including a hysterectomy, a pelvic fracture, arthritis and chronic back pain. Id. at *4-5.

While plaintiff proffered a slate of generic experts, she had one case specific causation expert. That expert’s opinion was–Plaintiff’s symptoms were caused by “the defects in design, testing, and marketing” of the device. Her symptoms “were the result of her body’s intrinsic foreign body reaction and chronic inflammation in the pelvis due to the polypropylene device that was implanted.” Id. at *9.

Notably missing from those two sentences is any discussion of a scientifically accepted methodology used by the expert to reach his conclusion. Specifically, no indication that the expert had conducted a differential diagnosis. A differential diagnosis is the process by which a physician rules in all scientifically plausible causes of injury and then rules out the least probable causes to arrive at a conclusion of the most likely cause. Here, where plaintiff had multiple prior surgeries and complaints, plaintiff and her expert are asking the court to “assume” he ruled in and out all other plausible causes. Federal Rule of Evidence 702 does not allow the court to jump to such a conclusion. There was simply “too great an analytical gap,” between the expert’s conclusion and the data for the court to accept his causation opinion. Id. at *12.

Without the ipse dixit opinion, plaintiff could not prove causation as to any of her claims and they all failed. But the court, unlike plaintiff’s expert, looked at the alternative grounds as well. The court dismissed plaintiff’s negligence and design defect claims for the additional reason that the device was not unreasonably dangerous as a matter of law. For a product to be unreasonably dangerous under Oklahoma law, it must pose a danger “beyond that which would be contemplated by the ordinary consumer.” Id. at *14. For a surgical device, the “ordinary consumer” is the implanting surgeon. Plaintiff offered no expert testimony regarding the expectations of an implanting surgeon. Rather the only evidence of record was that implanting surgeons are generally aware of the risks suffered by plaintiff and the Instructions for Use (IFU) contained warnings about all of the injuries plaintiff alleged. Id. at *15.

Similarly, defendant’s warnings were adequate as a matter of law. It was undisputed that the IFU contained warnings about the risks plaintiff allegedly suffered. Id. at *17. But even if that were not the case, plaintiff’s failure to warn claim would fail for lack of learned intermediary causation because plaintiff offered no evidence that her surgeon would have changed his course of treatment if presented with an alternative warning. That is the only way plaintiff can demonstrate that the alleged failure to warn was a “substantial contributing factor” in causing her injury. Id. at *18.

The lack of any evidence of physician reliance on representations by the defendant also defeated plaintiff’s claims for negligent misrepresentation, express warranty, and consumer fraud. Plaintiff offered no testimony from her surgeon and admitted that she relied on her doctor’s advice rather than any statement by defendant in deciding to undergo surgery. Id. at *19.

Under Oklahoma law, breach of implied warranty is no longer a separate product liability claim. Since it has been “merged into” products liability, the court dismissed it as an independent claim. Id. at *20. Finally, plaintiff could not sustain a claim for unjust enrichment because that claim is only available where plaintiff has no remedy at law. Because plaintiff’s claims “are controlled by robust and well-developed product liability law,” plaintiff was not entitled to equitable relief. And that holds true whether or not plaintiff actually recovers based upon the available legal remedy. As is the case for this plaintiff. Id. at *21-22.

This article was written by Michelle Yeary of Dechert LLP.