Maybe not as menacing as Lions and Tigers and Bears (Oh my) – however possible, sufficient, and efficient proved to be an excessive amount of for plaintiff in Davis v. Johnson & Johnson, 2022 WL 2115075 (Jun. 9, 2022).
It’s a remanded pelvic mesh case. On defendant’s movement to exclude sure testimony by plaintiff’s professional, a lot of the court docket’s rulings have been wait and see at trial with some admonitions that plaintiff’s professional shouldn’t stray from his experiences or try and introduce proof that was excluded by the MDL court docket. However, on the query of whether or not plaintiff’s professional may provide his “various design” theories, the court docket squashed that testimony like a home landed on it.
Kansas follows a “client expectation” take a look at for design defect. Which means, a plaintiff should present {that a} product is each faulty and harmful “to an extent past that which might be contemplated by the strange client” with strange data. Id. at *3. Proof of an alternate design is just not required by Kansas’s client expectation take a look at. Nonetheless, if plaintiff seeks to introduce proof of an alternate design, that proof should present “that the choice design is possible, sufficient, and efficient.” Id. at *2.
Defendant’s first argument as to all of plaintiff’s professional’s supplied various designs was that they have been ipse dixit given the dearth of help in his report. In plaintiff’s professional’s opinion, plaintiff’s accidents have been prompted by way of polypropylene mesh. Due to this fact, he leaps to the conclusion that alternate options that don’t use polypropylene are safer. Id. It doesn’t comply with, absent any clarification, that different merchandise with out polypropylene are possible, sufficient or efficient various designs. Due the analytical hole, plaintiff’s professional’s various design testimony was excluded.
However the court docket didn’t cease there. Plaintiff’s professional’s first various design was truly an alternate process – native tissue restore. The court docket cited quite a few different selections rejecting various procedures as various designs to the product at concern. Id. at *3. Plaintiff argued these instances have been inapposite as a result of various therapy proof was a part of the patron expectations evaluation. Not so in Kansas the place the Kansas Supreme Court docket has stated that “a information” in client expectations instances could also be to take a look at, amongst different issues, “the mechanical feasibility of a safer various design, not various therapies or merchandise.” Id. The court docket went on to say that proof of other procedures is of “doubtful relevance” to a design-defect declare. Id. However, it left the door each so barely ajar if plaintiff may first set up relevance in a roundabout way. About as probably as a speaking scarecrow with no mind.
Lastly, plaintiff’s professional supplied in its place a product manufactured from PVDF. PVDF, nonetheless, was not accredited in the US on the time of plaintiff’s surgical procedure. Id. at *4. Plaintiff tried to depend on the truth that PVDF existed on the time, however lack of FDA clearance was a bar to feasibility and subsequently a bar to its use as proof of an alternate design. Id. at *4-5.
Plaintiff may need she wasn’t in Kansas anymore, however that’s the place she is and meaning no admissible proof on various design.
