1:12-md-02329
N.D. Ga.Nov 2, 2015Background
- Plaintiff sued over failure of a Wright Conserve Hip Implant implanted April 24, 2006, asserting design-defect strict liability, negligence, fraudulent misrepresentation/concealment, and negligent misrepresentation; trial set for November 2015.
- Parties filed motions in limine and a joint stipulation narrowing evidence; they later submitted a Position Statement identifying three disputed evidentiary issues.
- Plaintiff sought to call four non-treating orthopedic surgeons to testify about (1) interactions with Wright Medical, (2) their expectations for the Conserve device, and (3) their success/failure rates with the device.
- Defendants opposed broad testimony as improper expert evidence, irrelevant to Plaintiff’s individual device failure, and violative of a stipulation barring evidence of revision/failure rates; they also disclosed late surveillance reports and sought to offer testimony about a related earlier device (Conserve Plus resurfacing system).
- The court allowed limited expectation testimony from two of the four surgeons, excluded testimony about post-surgery interactions and failure-rate statistics, reserved ruling on pre-surgery interaction evidence until trial, admitted evidence about the Conserve Plus design/testing for a limited purpose, and permitted surveillance evidence to impeach Plaintiff on claimed current limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of non‑treating surgeons as fact witnesses on expectations | Surgeons' expectations as ordinary consumers are relevant to show the device was "unreasonably dangerous" | Testimony is expert in nature, irrelevant to Plaintiff's device failure, and some surgeons are biased/outliers | Allowed limited expectations testimony from two surgeons (e.g., expected function, useful life, risks); excluded testimony about post‑surgery interactions and failure‑rate statistics; reserved ruling on pre‑surgery interactions until trial |
| Testimony about interactions/statements by Defendants to those surgeons | Pre‑April 24, 2006 statements show Defendants' intent/knowledge and support fraud claims | Interactions with non‑treating surgeons who did not treat Plaintiff are irrelevant | Pre‑surgery statements may be relevant to surgeons' expectations; admissibility will be decided at trial with a limiting instruction if admitted; post‑surgery interactions excluded |
| Evidence regarding Conserve Plus resurfacing device and testing | Exclude Conserve Plus evidence because it is a distinct device and would expand the case to other metal‑on‑metal hips | Conserve Plus was a design predecessor with same metal‑on‑metal parts and is relevant to design process, testing, and punitive damages | Admissible for the limited purpose of explaining defendants' experience with metal‑on‑metal parts and design rationale, with a limiting instruction |
| Surveillance report and photos/videos disclosed near trial | (Plaintiff) Likely objects to late disclosure and hearsay/irrelevance | Surveillance impeaches Plaintiff’s deposition about activity level and is proper impeachment evidence | Admissible to impeach Plaintiff if she testifies inconsistently about current physical limitations, discomfort, or pain |
Key Cases Cited
- Gudmundson v. Del Ozone, 232 P.3d 1059 (Utah 2010) (defines product as "unreasonably dangerous" under Utah Product Liability Act)
- Brown v. Sears, Roebuck & Co., 328 F.3d 1274 (10th Cir. 2003) (construes Utah Code §78B‑6‑702 as combining objective consumer expectations test with subjective knowledge of particular user)
- State v. Reed, 820 P.2d 479 (Utah Ct. App. 1991) (impeachment evidence admissible even if it would otherwise be inadmissible)
- Roundy v. Staley, 984 P.2d 404 (Utah Ct. App. 1999) (recognizes permissibility of surveillance evidence to assess claimed injuries)