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Alarid v. Biomet, Inc.

United States District Court, D. Colorado

February 1, 2016



Robert E. Blackburn United States District Judge

The matter before me is Defendants’ Motion To Exclude Testimony and Evidence of David Schneider, M.D. [#63], [1] filed September 21, 2015. I grant the motion.


I have jurisdiction over this case pursuant to 28 U.S.C. § 1331 (diversity of citizenship).


Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert witness testimony, provides that

[a] witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As interpreted by the Supreme Court, Rule 702 requires that an expert’s testimony be both reliable, in that the witness is qualified to testify regarding the subject, and relevant, in that it will assist the trier in determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786, 2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). An expert may be qualified by “knowledge, skill, experience, training, or education” to offer an opinion on an issue relevant to the case. Fed.R.Evid. 702(a). See also 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). An expert opinion is reliable when it is based on sufficient facts or data, employs a methodology generally deemed reliable in the expert’s field, and properly applies such methods to the facts of the case. See Fed. R. Evid. 702(b), (c), & (d); United States v. Crabbe, 556 F.Supp.2d 1217, 1222-23 (D. Colo. 2008).

Guided by these principles, the trial court has broad discretion in determining whether expert testimony is sufficiently reliable and relevant to be admissible. Truck Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain that the expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Goebel v. Denver and Rio Grand Western Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire, 119 S.Ct. at 1176). Generally, “rejection of expert testimony is the exception rather than the rule.” United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009). See also Fed. R. Evid. 702 (2000 Advisory Comm. Notes). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 113 S.Ct. at 2798.


Plaintiff in this case alleges strict products liability and negligence claims related to alleged design and manufacturing defects in the Comprehensive Reverse Shoulder, a prosthetic device designed, manufactured, marketed, and sold by defendants. Plaintiff underwent two reverse total shoulder arthroplasties[2] in 2009[3] and 2010[4] in connection with which Comprehensive Reverse Shoulder devices were implanted in both shoulders. Both devices failed within about three years of the original surgeries, fracturing at the joint between the baseplate and the trunnion. As a result, plaintiff experienced pain and loss of function and was required to undergo revision surgeries to remove and replace both devices. This lawsuit followed.

By this motion, defendants seek to limit the testimony of Dr. David Schneider, the orthopedic surgeon who performed both plaintiff’s original and revision surgeries. Plaintiff designated Dr. Schneider as a non-retained expert to testify regarding his treatment of plaintiff, and thus produced no expert report. See Fed. R. Civ. P. 26(a)(2)(B). However, in his Rule 26 disclosures, plaintiff suggested that, in addition to describing his treatment of plaintiff, Dr. Schneider also would testify that the failure of the Comprehensive Reverse Shoulder devices was attributable to “bad engineering, ” that defendants had “used [the] wrong material and wrong thickness, ” and that the “reason for the failure is the design of the humeral tray – material too thin to withstand pressures.” (Plf. Resp. App., Exh. A at 6, Exh C at 1 [#79-1], filed October 15, 2015.) In addition, plaintiff suggests that Dr. Schneider “will testify to his knowledge of medical device development, general safety procedures which should be followed in the development of medical devices, impedance matching and impact techniques and requirements for devices that connect with tapers.” (Id., Exh. B at 3.)

Defendants maintain that Dr. Schneider is unqualified to testify as to these matters because they exceed the scope of his acknowledged expertise as an orthopedic surgeon. It is undisputed that Dr. Schneider is not an engineer. He personally does not consider himself an expert in biophysics, biomechanics, metallurgy, or biomaterials. (Def. Reply App., Exh A at 31-32 [#89], filed October 29, 2015.)

Although he has consulted with defendant in the past regarding the design of shoulder prosthetics, his role in that capacity was as an orthopedic surgeon; other members of the design team focused on engineering, ...

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