295 F. Supp. 3d 1094
C.D. Cal.2017Background
- Plaintiff Anita Laux alleges systemic injuries (fatigue, pain, respiratory congestion, numbness, autoimmune/biotoxin-related conditions) after receiving Mentor saline breast implants in 2005 and explantation in 2014.
- Plaintiff designated three experts: Dr. Susan Kolb (treating plastic surgeon, opines on biotoxin disease from mold in implants), Dr. Pierre Blais (chemist, failure analysis alleging defective valves and microbiological contamination), and Dr. Arthur Brawer (toxicology opinion of "breast implant toxicity").
- Defendant moved to exclude all three experts under Daubert/Federal Rule of Evidence 702 and Federal Rule of Civil Procedure 26 (for Brawer), arguing lack of qualifications, unreliable methodology, insufficient facts/data, and Rule 26 disclosure failures.
- Court evaluated qualification and methodology: Kolb relied on clinical experience and non–peer-reviewed Shoemaker literature, failed to objectively rule out environmental mold exposure; Blais lacked microbiology/pathology/engineering qualifications, used subjective "eyeballing" without measurements or testing; Brawer's report lacked required Rule 26 detail and any articulated methodology or identified toxin.
- The court found each expert's opinions unreliable or noncompliant with Rule 26 and granted Defendant's motions to exclude Kolb, Blais, and Brawer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Kolb's biotoxin opinions (Rule 702/Daubert) | Kolb is a recognized expert in breast-implant issues and her clinical experience supports diagnosis of biotoxin disease | Kolb lacks training in immunology/mycology/infectious disease, relied on untested theory and failed to rule out environmental mold or use objective tests | Excluded: not qualified on biotoxin/mold; differential diagnosis unreliable and unsupported by peer-reviewed science |
| Admissibility of Dr. Blais' failure analysis and microbiological conclusions | Blais can identify debris and valve defects based on biomaterials/chemistry experience | Blais is not a microbiologist/MD/engineer, used subjective visual inspection, did no measurements or testing, and lacks peer-reviewed support | Excluded: unqualified for medical/microbiology opinions; methodology subjective, untested, and unreliable |
| Admissibility of Dr. Brawer's toxicology opinions (Rule 702/Rule 26/Daubert) | Brawer's report diagnoses "breast implant toxicity" based on exam/medical history | Report fails Rule 26 requirements (no basis/reasons, facts considered, prior testimony list, or compensation disclosure) and contains no methodology or identified toxin | Excluded: report noncompliant with Rule 26 and opinion unreliable under Daubert |
| Preclusion/sanctions under Rule 37 for Brawer's nondisclosure/deposition issues | Plaintiff offered opposition; argued leniency for pro se (procedural context) | Defendant notes counsel cancelled deposition and seeks exclusion under Rule 37 | Court excluded Brawer's opinions on Daubert grounds and declined to rely on deposition non-availability argument further |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (gatekeeping duty to ensure expert relevance and reliability)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert principles apply to all expert testimony)
- Clausen v. M/V NEW CARISSA, 339 F.3d 1049 (differential diagnosis must consider other plausible causes)
- Westberry v. Gislaved Gummi AB, 178 F.3d 257 (failure to take serious account of other causes can render differential diagnosis unreliable)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (court may exclude expert testimony where analytical gap is too great)
- Kennedy v. Collagen Corp., 161 F.3d 1226 (expert testimony may be rejected for lack of reliable connection to data)
- Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227 (application of Rule 702 in the Ninth Circuit)
- Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (Rule 26 disclosure consequences and Rule 37 enforcement)
- Draper v. Coombs, 792 F.2d 915 (courts should give pro se litigants leniency on technical procedural rules)