Krueger v. Johnson & Johnson Professional, Inc. , 66 F. App'x 661 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3553
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Robert J. Krueger; Patricia Krueger, *
*
Appellants, *
*
v. *
* Appeal from the United States
Johnson and Johnson Professional, * District Court for the Southern
Inc.; Codman & Shurtleff, Inc.; * District of Iowa.
Johnson & Johnson Health Care *
Systems, Inc.; Johnson & Johnson * [UNPUBLISHED]
Hospital Services, Inc.; Johnson & *
Johnson, *
*
Appellees. *
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Submitted: May 16, 2003
Filed: May 21, 2003
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Before LOKEN, Chief Judge, FAGG and MURPHY, Circuit Judges.
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PER CURIAM.
Robert J. Krueger had back surgery to fuse his vertebrae. The bones failed to
fuse after the first surgery, so a second surgery was performed to implant a Codman
Plate to aid fusion. The screws holding the plate broke and a third surgery was done
to remove the plate and screws. Krueger then brought this diversity action against the
Codman Plate’s manufacturer. After the district court* excluded two of Krueger’s
experts because their testimony did not meet the Daubert test, the court granted
summary judgment to the manufacturer. Krueger appeals asserting the district court
abused its discretion in excluding the expert testimony.
Generally, expert testimony is admissible when it is reliable and when it would
help the trier of fact. Fed. R. Evid. 702. A district court has considerable latitude in
deciding whether expert testimony is reliable and would help the trier of fact, and in
making this decision, the court may consider one or all factors from Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993). In re Air Crash at
Little Rock, Ark., 291 F.3d 503, 514 (8th Cir. 2002).
Krueger’s first expert, metallurgist George Otto, would have testified the
Codman Plate was defectively designed because a cam-lock system exerted
unintended side pressure on the head of the system’s screws, causing the screws to
break. Krueger’s second expert, Edward Reese, opined that the system was
defectively designed because it failed to satisfy an alleged design objective that it be
able to provide stabilization for at least six months, that Codman failed to comply
with certain FDA testing regulations and the device should have been subjected to
clinical testing, and that its label should have included a life expectancy for the
device.
We agree with the district court that neither expert had sufficient knowledge
or experience with the design of the Codman plate or similar systems to adequately
explain or validate their theories. Neither expert conducted any testing to support
their design defect or alternative design theories. Both experts admitted they lacked
expertise in medical issues and neither addressed a likely alternative cause of
*
The Honorable Ronald E. Longstaff, United States District Court for the
Southern District of Iowa.
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breakage–that the failure of Krueger’s bones to fuse caused the device to fail. See
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 201 (4th Cir. 2001) (finding expert
in spinal implant case unreliable because expert “failed to address the possibility that
the screw fracture was caused by nonunion”).
In sum, the district court did not abuse its discretion in refusing to admit the
expert testimony. Absent admissible expert testimony, Krueger cannot establish a
prima facie case of strict liability or negligence. The district court thus properly
granted summary judgment to the manufacturer. Accordingly, we affirm the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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