Product Liability
| Jurisdiction | United States,Federal,Georgia |
| Publication year | 2012 |
| Citation | Vol. 64 No. 1 |
Product Liability
Franklin P. Brannen Jr.
Jacob E. Daly
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This Article surveys developments in Georgia product liability law between June 1, 2011 and May 31, 2012.1 This Article covers noteworthy cases decided during this period by the Supreme Court of Georgia, the Court of Appeals of Georgia, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.
More than six years ago Georgia adopted the Daubert v. Merrell Dow Pharmaceuticals, Inc.2 standard for assessing the admissibility of testimony from expert witnesses in civil actions.3 While the Georgia appellate courts have provided guidance regarding the application of the Daubert standard in other types of lawsuits, there have been few Daubert opinions from the Georgia appellate courts in product liability cases.4 Without state appellate court guidance, practitioners and judges
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must rely on decisions from the federal courts as persuasive authority.5 The following recent opinions offer guidance on Daubert issues in product liability cases.
The limits that Daubert places on novel expert theory were addressed in Sumner v. Biomet, Inc.,6 a lawsuit in which the plaintiff underwent surgery involving the placement of a metal-on-metal hip joint prosthesis in her right hip.7 Over the next few months, multiple x-rays of the plaintiff's surgically repaired hip revealed that metal debris was floating in the area of the implant. To remedy this issue, the plaintiff's doctor decided to replace the original prosthesis with a new one. The plaintiff filed a lawsuit against the manufacturer of the prosthetic hip joint, alleging that the prosthetic device was defectively manufactured and that the manufacturer failed to warn about the defect.8
The plaintiff's expert witness, Rex McLellan, who has a doctorate in metallurgy, served as the primary source of proof for the plaintiff's claim that the prosthesis was defectively manufactured. In his initial expert report, Dr. McLellan indicated that there were areas of chemical inhomogeneity on the surface of the ball of the prosthesis that caused particles to shed off of the prosthesis and that this chemical inhomogeneity resulted from improper manufacturing. Through a supplemental expert report and two depositions, Dr. McLellan's opinion wavered regarding which metals caused the inhomogenous surface, but he essentially maintained his theory that the loose particles were ejected from the prosthesis because of inhomogeneities in the metal used to make the ball of the prosthesis.9
After discovery, the manufacturer moved to exclude the testimony of Dr. McLellan, and the trial court considered whether Dr. McLellan's particle ejection theory satisfied the mandates of Daubert and Rule 702 of the Federal Rules of Evidence.10 First, the court determined that Dr. McLellan had not tested his theory or shown that his theory was capable of being tested.11 Next, the court concluded that the plaintiff failed to establish that Dr. McLellan's theory had been the subject of publication
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and peer review.12 Then, the court highlighted that the plaintiff was unable to demonstrate a rate of error for Dr. McLellan's theory.13 In addition, Dr. McLellan had developed his theory solely as part of his work in this case.14 Accordingly, the trial court excluded Dr. McLellan's testimony, holding that Dr. McLellan's particle ejection theory was the product of unreliable methodology that did not satisfy the requirements of Rule 702.15 Without the testimony from Dr. McLellan, the trial court granted summary judgment to Biomet.16
On appeal, the United States Court of Appeals for the Eleventh Circuit concluded that the trial court did not abuse its discretion in excluding Dr. McLellan's testimony.17 Importantly, the plaintiff failed to show how Dr. McLellan employed a reliable methodology.18 In reviewing Dr. McLellan's testimony, the appellate court emphasized that Dr. McLellan essentially agreed his defect theory was practically incapable of being tested.19 Likewise, the plaintiff failed to come forward with any scientific literature to support Dr. McLellan's theory showing either peer review or general acceptance in the scientific community.20 Finally, because Dr. McLellan developed his theory for this litigation only, his methodology was even less reliable.21 With this analysis of the Daubert factors, the Eleventh Circuit concluded that the exclusion of Dr. McLellan's testimony was not an abuse of discretion.22
The inability of a plaintiff to show that his experts undertook a proper methodology in reaching their opinions was equally problematic in Udoinyion v. Michelin North America, Inc.,23 a product liability lawsuit in which the plaintiff experienced a tire blowout on his car and brought suit against Michelin, the manufacturer of the tire.24 In response to Michelin's summary judgment motion, the plaintiff filed two affidavits from tire experts who both testified that, based on their inspection, the tire was defective.25 Michelin moved to exclude these affidavits based
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on the requirements of section 24-9-67.1 of the Official Code of Georgia Annotated,26 and the trial court granted the motion, finding that the affidavits were "totally inadequate."27
The Georgia Court of Appeals agreed and concluded that the trial court did not abuse its discretion when it excluded the testimony from the affidavits.28 Both experts had merely performed a visual inspection and concluded that the tire was defective.29 This cursory analysis was insufficient.30 The affidavits were deficient because they (1) failed to provide the facts or data supporting the opinions; (2) did not describe the methodology used to formulate the opinions regarding the nature of the defect in the tire; and (3) did not explain how the experts had used a proper methodology to reach their conclusions based on their inspection of the tire in this case. Without this necessary support for the experts' opinions, the court of appeals affirmed the decision of the trial court.31
The plaintiff in Butler v. Union Carbide Corp.32 also failed to show how the expert witness undertook a reliable methodology that satisfied the Daubert criteria.33 In that lawsuit, the plaintiff sought damages for her husband's death from mesothelioma allegedly caused by his exposure to asbestos-containing products sold by the defendants, including Union Carbide Corporation. The defendants moved to strike the testimony of the plaintiffs causation expert, Dr. John Maddox, a pathologist who opined that every exposure the plaintiff's decedent had to asbestos that was above the level of asbestos in ambient air contributed to causing the decedent's mesothelioma. The trial court granted the motion to strike and excluded Dr. Maddox's testimony from the case. Without this causation testimony from Dr. Maddox, the trial court granted summary judgment in favor of Union Carbide.34
On appeal, the plaintiff argued that Dr. Maddox undertook a methodology that was generally accepted in the scientific community and supported by technical literature.35 However, the appellate court disagreed and clarified that the literature did not support a conclusion that the Union Carbide product was a sufficient source of asbestos to
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have been a significant factor in causing the mesothelioma.36 Although Dr. Maddox's opinion may have attained general acceptance in the scientific community, the trial court did not have to give dispositive weight to this factor.37 Under Daubert, the trial court may select the appropriate criteria for each case depending on the nature of the proffered testimony and the scientific methodology that should have been employed in that area.38
Finally, the plaintiff complained that the testimony of Dr. Maddox was excluded because the trial court improperly assessed the credibility of Dr. Maddox.39 The appellate court, however, clarified that the trial court did not assess whether Dr. Maddox was generally credible; instead, the trial court concluded that Dr. Maddox did not follow a scientifically reliable methodology to reach his conclusion that asbestos in the Union Carbide product was a substantial factor in causing the mesothelioma.40 To the contrary, the trial court did not examine opposing expert opinions and conclude that the other opinions were better, nor did it somehow discredit Dr. Maddox because his opinions were not credible.41 The trial court correctly assessed whether Dr. Maddox employed a reliable scientific methodology to reach his causation opinion 42 With the trial court's proper application of the Daubert criteria, the court of appeals concluded that the trial court did not abuse its discretion in excluding Dr. Maddox's causation testimony.43
A. Preemption
The Supremacy Clause of the United States Constitution provides that federal law is "the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."44 Thus, state laws that conflict with federal law are "without effect."45 A state law conflicts with a federal law "if it interferes with the methods by which the federal statute was designed to reach [its] goal," even if
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both the federal law and the state law have the same goal.46 Although preemption issues are typically analyzed in connection with a federal statute, a federal regulation may have the same preemptive effect as a federal statute.47 State laws subject to preemption include not only state statutes and regulations, but also tort duties imposed by state common law and enforced by lawsuits.48
"The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law."49 In fact, Congress's purpose in enacting the federal law is the "ultimate...
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