Products Liability Law Reporter

The Seventh Circuit Court of Appeals affirmed summary judgment for the defense in a case alleging a patient died from complications of a surgical mesh patch where the plaintiffs’ expert failed to meet the threshold reliability standards under evidentiary Rule 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 

Georgia Bowersock underwent surgery to repair a hernia, and her surgeon implanted a C.R. Bard surgical mesh patch comprising two pieces of mesh surrounded by a flexible plastic ring. Bard later recalled several versions of the patch after receiving reports about defects with the ring that would cause intestinal perforations or cause the patch to adhere to a patient’s internal organs. Approximately a year after her surgery, Bowersock died of complications from an abdominal wall abscess. 

Her sons and sister sued C.R. Bard and Davol, Inc., the patch’s patent holder, alleging negligence, failure to warn, breach of implied warranty, fraud, and intentional infliction of emotional distress, among other claims. The plaintiffs asserted that the patch implanted in Bowersock was defective and led to her death. Among other experts, the plaintiffs retained Stephen Ferzoco, who developed the novel theory that the patch’s ring buckled and rubbed against Bowersock’s bowel, causing a fistula.

The trial court granted the defendants’ motion to exclude the plaintiffs’ experts, ruling, in part, that Ferzoco’s theory failed to meet the reliability threshold under Fed. R. Evid. 702. Finding that the plaintiffs lacked a causation expert without Ferzoco, the court entered summary judgment for the defense.

Affirming, the Seventh Circuit found that under Rule 702, an expert’s opinion is permitted if his or her scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case. Additionally, the court said, under Daubert, a judge must evaluate whether the expert’s theory has been tested, subjected to peer review and publication, analyzed for known or potential error rate, or is generally accepted within the scientific field.

The court determined that here, the trial court properly applied the Rule 702 and Daubert standards when considering the defendants’ motion. The judge explained that Ferzoco’s theory was not reliable in that it was not tested, subjected to peer review, or described in the medical literature. Additionally, the court said, Bowersock’s medical records and autopsy report do not comport with what the expert described. Finally, Ferzoco was unable to identify patients or records substantiating his claim that he had treated other patients who were injured in this manner.

Accordingly, the court held that the trial judge had correctly excluded Ferzoco’s testimony as unreliable, and summary judgment for the defense was proper.

Citation: Robinson v. Davol Inc., 2019 WL 275555 (7th Cir. Jan. 22, 2019).