Alabama has at all times had some quite uncommon jurisprudence. In product legal responsibility, the Yellowhammer State doesn’t have negligence or strict legal responsibility, however quite a hybrid known as the Alabama Prolonged Producers Legal responsibility Doctrine (“AEMLD”). See Casrell v. Altec Industries, Inc., 335 So.second 128, 132-33 (Ala. 1976). Extra just lately, the Alabama Supreme Court docket twice adopted the intense pro-plaintiff innovator legal responsibility principle in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and outdated, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014). On that event, the Alabama legislature overruled the courtroom. See Ala. C. §6-5-530. Extra just lately than that, the identical courtroom licensed plaintiffs to perjure themselves and declare that they’d have ignored their medical doctors’ suggestions so as to declare causation in discovered middleman instances. Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022). Most just lately, and most notoriously, the Alabama Supreme Court docket declared frozen embryos to be folks – no less than for the needs of tort regulation. LePage v. Heart for Reproductive Drugs, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024). Who is aware of? By 2030, Alabama would possibly try and rely blastocysts as “folks” for functions of the census – though not for tort functions, because the legislature seems to have stepped in once more.
We learn one other weird – if not almost as infamous – Alabama regulation resolution just lately. Ahmed v. Johnson & Johnson Healthcare Techniques, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024). What’s weird about it? It allowed a plaintiff in a medical machine product legal responsibility case (hip implant) get to the jury with none medical skilled testimony on causation. Id. at *16 (entitled “Abstract Judgment will not be Required on All of Plaintiff’s Claims Even Although She Presents No Professional Proof Concerning Medical Causation”).
That’s simply plain bizarre. We could agree or disagree with different points of Ahmed (see beneath), however nothing else go away us scratching our heads. As we identified just lately, the Sixth Circuit grew to become the primary federal courtroom of appeals to look at all fifty states and maintain that every one in every of them requires skilled medical testimony to determine causation:
[A]s an MDL, the problem was ruled by the substantive state regulation of the transferor state. So the courtroom reviewed the regulation of all fifty states, concluding that every one states require the plaintiff in instances involving advanced problems with medical causation to current skilled testimony on the topic. The district courtroom doesn’t stand alone: different district courts have agreed that every one jurisdictions require skilled testimony to point out common causation, no less than the place the problems are medically advanced and out of doors frequent information and lay expertise.
In re Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin & Metformin) Merchandise Legal responsibility Litigation, ___ F.4th ___, 2024 WL 577372, at *6 (sixth Cir. Feb. 13, 2024) (citing In re Lipitor (Atorvastatin Calcium) Advertising, Gross sales Practices & Merchandise Legal responsibility Litigation, 227 F. Supp.3d 452, 469-78 (D.S.C. 2017) (gathering instances), aff’d, 892 F.3d 624 (ninth Cir. 2018), and In re Mirena IUS Levonorgestrel-Associated Merchandise Legal responsibility Litigation (No. II), 387 F. Supp.3d 323, 341 (S.D.N.Y. 2019), aff’d, 982 F.3d 113 (second Cir. 2020)) (different citations, citation marks, and footnotes omitted).
Certainly, shortly after the above-quoted Mirena resolution, we compiled a 50-state survey of this difficulty in 2019, entitled “Prescription Medical Product Causation – Professional Required.” That put up collected all caselaw, as of 2019 (it isn’t up to date) to show that each state within the union requires skilled causation in advanced product legal responsibility instances. At that time, along with the 2 selections cited in Onglyza, we counted 5 different MDL selections for a similar proposition.
As well as, we had the next to say about Alabama regulation:
Below Alabama regulation, skilled testimony is required to determine causation the place “the character and origin” of the damage is “past the understanding of the typical individual.” Ex parte Trinity Industries, Inc., 680 So.second 262, 269 (Ala. 1996). Thus, “[p]laintiffs should show the toxicity of [a product] and that it had a poisonous impact on them inflicting the accidents that they suffered,” and “[t]his sort of proof requires skilled testimony.” McClain v. Metabolife Worldwide, Inc., 401 F.3d 1233, 1237 (eleventh Cir. 2005) (making use of Alabama regulation).
The interplay between a posh and technical medical machine and the distinctive physiological and medical circumstances of the affected person through which it’s implanted is a topic on which no strange juror may rationally be anticipated to have information. The online result’s that, with out the good thing about skilled testimony, an inexpensive jury couldn’t probably make a willpower . . . that [plaintiff’s] accidents have been attributable to a . . . defect within the [product].
Hughes v. Stryker Gross sales Corp., 2010 WL 1961051, at *5 (S.D. Ala. Might 13, 2010), aff’d, 423 F. Appx. 878, 881 (fifth Cir. 2011) (on foundation of district courtroom’s reasoning). “[I]n the everyday case involving a posh medical machine, the absence of skilled testimony would power a jury to have interaction in hypothesis and conjecture on problems with defect and causation,” thus “courts routinely require skilled testimony in such issues.” Id.
Thus, “Alabama courts constantly have opined that . . ., when the product at difficulty is of a posh and technical nature, the plaintiff’s proof of a defect needs to be within the type of skilled testimony. Bloodsworth v. Smith & Nephew, Inc., 476 F. Supp.second 1348, 1353 n.3 (M.D. Ala. 2006). See Drake v. Ortho-McNeil-Janssen Prescription drugs, 2018 WL 1431646 (N.D. Ala. March 22, 2018) (“[d]ue to the advanced nature of the claims, skilled testimony typically is required to determine common and particular causation in product legal responsibility instances”); Brantley v. Worldwide Paper Co., 2017 WL 2292767, at *16 (M.D. Ala. Might 24, 2017) (“The plaintiffs should set up each common and particular causation by way of skilled proof.”); Jones v. Novartis Prescription drugs Corp., 2017 WL 553134, at *17 (N.D. Ala. Feb. 10, 2017) (“plaintiffs should present skilled testimony to determine each common and particular causation”), aff’d, 720 F. Appx. 1006 (eleventh Cir. 2018); Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp.second 1316, 1332 (M.D. Ala. 2006) (plaintiff “should current skilled proof on common causation. With out proof of causation, she can not prevail”) (quotation omitted); Sutherland v. Matrixx Initiatives, Inc., 2006 WL 6617000, at *14 (N.D. Ala. 2006) (“with out an skilled to attach a toxin to an damage, there isn’t a poisonous tort”); Emody v. Medtronic, Inc., 238 F. Supp.second 1291, 1295 (N.D. Ala. 2003) (“A necessary factor of all product legal responsibility instances is skilled testimony . . . {that a} defect was the medical reason behind plaintiff’s claimed accidents.”).
So how may Ahmed go thus far astray?
Ahmed will not be a case the place the plaintiff had no specialists in any respect. Somewhat, because the above heading we quoted states, plaintiff didn’t have any medical testimony. Plaintiff did have an engineer paid to supply a “failure evaluation” opinion concerning the machine itself. 2024 WL 693078, at *6. Although this engineer has “by no means analyzed” any form of plastic implant earlier than Ahmed, he was discovered certified as a result of his common “background and many years of expertise.” Id. Nonetheless, as even Ahmed admitted, “engineers aren’t certified to supply opinions as to medical causation.” Id. at *11.
Who’s? A medical physician.
However plaintiff nonetheless didn’t have any admissible medical testimony. And we predict she wanted it. Here’s a thumbnail timeline of the medical historical past. Hip implantation surgical procedure; six weeks later a “popping sound” when “getting up”; one other month and “she instructed her physician that the hip pops and locks up generally”; almost a month later, she fell; the following day, x-rays confirmed the implant “eccentrically situated,” resulting in revision surgical procedure. Id. at *2, 16. Did the “eccentricity” pre-date the autumn, or did the autumn trigger it? No physician ever opined on that.
Plaintiff did have a health care provider lined up – however for some cause (by no means defined) solely as a “rebuttal witness.” Ahmed, 2024 WL 693078, at *13. A rebuttal witness is simply that – not permitted to testify within the plaintiff’s case in chief, however “solely to contradict or rebut proof on the identical material recognized by one other social gathering.” Id. (quotation and citation marks omitted).
[Defendant’s medical] opinion is that plaintiff’s “medical procedures to restore and exchange her proper hip have been primarily unsuccessful for patient-specific causes and never as the results of any defect within the . . . elements used.” . . . [Plaintiff’s rebuttal witness] will then rebut [the defense] opinion that patient-specific elements have been accountable by testifying that [plaintiff’s] failed whole hip alternative was “multifactorial.”
Id. at *13 (citations omitted). Okay, however nonetheless no witness can so opine in plaintiff’s case in chief – and plaintiff bears the burden of proof.
The rebuttal witness “could not testify in plaintiff’s case-in-chief to determine medical causation.” Id. at *14. Alongside these strains, since that rebuttal witness was restricted to critiquing the protection witness, he “didn’t conduct a differential analysis on this case and was not required to take action.” Id. at *15. That signifies that this medical witness couldn’t provide the crucial medical causation opinion that Alabama regulation (and the regulation of each different state within the nation) required. So the plaintiff in Ahmed unquestionably didn’t have any medical causation testimony for her case in chief.
Ahmed let plaintiff skate on this basic causation level by holding that the case wasn’t truly “advanced” in spite of everything. Citing nothing – solely distinguishing the defendant’s authority – Ahmed held: “even when whether or not the [implant’s] failure brought on Plaintiff’s accidents was in dispute, it could be inside a juror’s purview that the damages over which Plaintiff sues resulted from the [implant’s] failure and never some alternate trigger.” 2024 WL 693078, at *17. Why? Pure “temporal relationship.” Id. However the Eleventh Circuit (like different courts) has mentioned “no” to that.
The difficulty of the chronological relationship results in one other necessary level − proving a temporal relationship between [product use] and the onset of signs doesn’t set up a causal relationship. In different phrases, just because an individual [uses a product] after which suffers an damage doesn’t present causation. Drawing such a conclusion from temporal relationships results in the blunder of the put up hoc ergo propter hoc fallacy. The put up hoc ergo propter hoc fallacy assumes causality from temporal sequence. . . . It’s known as a fallacy as a result of it makes an assumption based mostly on the false inference {that a} temporal relationship proves a causal relationship.
McClain v. Metabolife Worldwide, Inc., 401 F.3d 1233, 1243 (eleventh Cir. 2005) (quotation omitted). That’s exactly why skilled testimony is required – so “that call makers is not going to be misled by the put up hoc ergo propter hoc fallacy − the fallacy of assuming that as a result of a organic damage occurred after [an event], it should have been attributable to [that event].” Id. (quotation and citation marks omitted).
Nonetheless, Ahmed held, based mostly solely on the engineering testimony about defect – that “on this case it’s definitely a ‘pure inference’ {that a} juror may make by way of human expertise that Plaintiff’s . . . damages concentrated in [her] proper hip – proximately resulted from the Hip Implant having failed.” 2024 WL 693078, at *17. The “supporting” quotation, to Allison v. McGhan Medical Corp., 184 F.3d 1300 (eleventh Cir. 1999) (making use of Georgia regulation), is something however supportive, since Allison particularly held that lack of medical skilled testimony (after Rule 702 exclusion) was deadly and required abstract judgment in that case. Allison, 184 F.3d at 1320 (“medical skilled testimony was important to show causation on this case”).
This lead to Ahmed – {that a} plaintiff can get to the jury with none medical skilled in any respect in a case involving alleged accidents from an implanted medical machine – seems each unprecedented and unsupported. Even granting plaintiffs every thing their engineering skilled may opine: that the machine was “faulty” and subsequently may fail for the design causes so said, nothing excludes plaintiff’s fall the day earlier than because the medical reason behind the “eccentric” positioning that led to the revision surgical procedure and what adopted.
Other than that massive error, nonetheless, not all of Ahmed was horrible. Particularly, one other side of the plaintiff’s similar engineering skilled’s testimony, regarding purported different designs, was excluded as a result of none of them truly existed and had truly been examined for feasibility. This was not a case the place both the defendant, or a competitor, had introduced any of the supposed options to market. Ahmed, 2024 WL 693078, at *9 (skilled “was unable to reliably level to any particular competitor design”). Given the shortage of actual world expertise with the claimed options, testing was a obligatory a part of the idea for that opinion:
[The expert] is excluded from testifying at trial relating to any different design proposals that will have been obtainable to Defendants in manufacturing the allegedly faulty [device]. It seems from the [record] that he merely conceptualized prospects when suggesting modifications to the [device design], that are an insufficiently dependable foundation for proposing different designs.
Id. (citations and citation marks omitted). “[A]pplicable case regulation means that the failure to check a proposed different design or cite one other’s testing of the design is deadly to the admissibility of mentioned testimony.” Id. Plaintiff’s failure to determine any different design required dismissal of each plaintiff’s AEMLD and negligent design claims, for which an alternate design is an important factor. Id. at *18.
That’s a pleasant sufficient secondary holding, however general, the holding in Ahmed {that a} plaintiff can set up medical causation with none medical testimony was each incorrect and unprecedented.
