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The Old One-Two On Appeal, Too (and Two)

By James M. Beck and Mark Herrmann

Not quite a year ago we noted the Daubert tour de force that the defense completed in Feusting v. Zimmer, 2009 WL 174163 (C.D. Ill. Jan. 26, 2009).  Two notorious plaintiff experts - James Pugh and then Robert Rose - excluded in the same case.  Well we're pleased to report that the second exclusion has now been affirmed on appeal at Feusting v. Zimmer, Inc., No. 09?1362, slip op. (7th Cir. Jan. 25, 2010).  Here's the synopsis:

In our earlier opinion we excluded the testimony of Dr. James Pugh, Fuesting?s initial causation expert. On remand, Fuesting employed the services of Dr. Robert Rose, who testified that the knee implant oxidized while it was implanted because Zimmer used a faulty sterilization process. Dr. Rose?s testimony suffers from the same deficiencies upon which we excluded Dr. Pugh?s testimony in the earlier opinion.

Slip op. at 1-2.

Rose did a lot of things wrong, which you can read about in the opinion, but to our minds the most blatant was to blame the alleged device failure on "oxidation" when the device had sat around on a shelf for six years after explantation, and not to offer any way of distinguishing between pre-implant oxidation, in-situ oxidation (assuming that happens at all), and post-explant explantation.  Slip op. at 4.

Congrats to Zimmer and its legal team for not only getting both Pugh and Rose thrown out in the same case, but keeping both wins on appeals.

Full post as published by Drug and Device Law on January 26, 2010 (boomark / email).