EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, September 11, 2011

In General, Take 3: DRI Finds Testimony About Hernia Patch Admissible Despite Lack Of General Acceptance

Last week, I noted that someone on the Evidence professor listserv posed the question of whether a court has ever found that expert evidence that did not have general acceptance within the relevant expert community still satisfied the Daubert test. A follow-up e-mail asked the question of "What is the 'thing' that must be generally accepted?" This was the question addressed by the United States District Court for the District of Rhode Island in its recent opinion in Thorpe v. Davol, Inc., 2011 WL 470613 (D.R.I. 2011), with the court noting that it is the expert's principles and methodology, not the conclusions that they generate, that must be generally accepted.

In Thorpe, Christopher Thorpe and his wife Laura brought an action against several defendants, including Davol, Inc., which manufactures the CK patch used to repair his hernia. Generally, their complaint alleged that Christopher

was injured because the CK Patch used to repair his hernia was "inherently dangerous" for its intended use; that it was sold in a defective condition; that, as designed and manufactured by Davol, the CK Patch was unsafe; and that Davol failed to implement a safe and effective memory recoil ring that would interact with the CK Patch mesh in such a way as to withstand foreseeable stresses in the intraabdominal space intraabdominal space. 

After the jury found for the plaintiffs, Davol filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), claiming, inter alia, that the court erred by allowing the plaintiffs to present the testimony of Dr. Paul Ducheyne that scar contracture could have pulled apart the memory recoil rings on the CK patch. Specifically,

Dr. Ducheyne explained in detail how he had arrived at the conclusion that the ring in Thorpe's patch had broken at the weld by pointing out that the piece of one ring still in the patch showed a break in the molded material by which the two parts of the ring were originally connected, and that one of the pieces removed from Thorpe showed a corresponding break in the weld....With respect to his testimony on scar contracture and tissue responses to medical devices implanted in the body, Dr. Ducheyne explained that he had published extensively on tissue reactions and forces and stresses in tissues....His observations regarding the properties of polypropylene, including its intended function to become part of the surrounding tissue were supported by other testimony and not generally disputed. Moreover, the phenomenon of naturally occurring scar contracture generally, and in connection with medical devices, such as henia patches, specifically, is well known; it was explained in detail by Davol's own witness, Vice President of Research and Development, Roger Darois...; and Davol itself conducted various animal studies to investigate the contracture of ringed and ringless mesh inside the body.

The District of Rhode Island noted that the admissibility of Dr. Ducheyne's testimony was governed by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Federal Rule of Evidence 702. And, according to the court,

While Daubert sets forth various factors to assist the Court in evaluating the principles and methodology relied upon by an expert witness to arrive at his ultimate conclusion, the factors are neither definitive nor exhaustive and may not be applicable in a particular case. Here, plaintiffs' expert acknowledged that there was no general acceptance of a general "scar contracture causes ring breaks" hypothesis, nor had such a theory been subjected to peer review or scientific investigation. However, Daubert does not require that every ultimate conclusion by an expert witness meet such standards; rather, the focus of a Daubert inquiry is on "principles and methodology, not on the conclusions that they generate."....Nor does Daubert require that an expert witness have conducted his own research regarding his specific conclusion or that such conclusion is supported by peer-reviewed literature. Further, the expert is "permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation."

Applying Daubert, the District of Rhode Island concluded that

It is clear that Dr. Ducheyne's ultimate conclusion would have carried more weight, had it been supported by general acceptance or peer reviewed literature. However, the reasoning and methodology by which he arrived at his ultimate conclusion were sufficiently grounded in scientific knowledge and supported by factual evidence, thus making his testimony admissible. Moreover,...Dr. Ducheyne was subjected to rigorous and competent cross examination that challenged both his conclusions and the sources from which he derived his conclusions, leaving it up to the jury to "decide among the conflicting views of different experts."...For these reasons, the Court is of the opinion that Dr. Ducheyne's testimony was properly admitted and that Davol's motion to strike such testimony must be denied.



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I see that the General Acceptance should be recognized for the benefit of the victims.

Posted by: hernia patch lawsuit | May 8, 2012 3:16:13 AM

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