The Eleventh Circuit recently reinstated a case alleging a surgical tool caused internal burns during a hysterectomy surgery, holding that the district court erred in disqualifying an expert on the basis that he had never before used the tool. The decision is a reminder of the importance of asserting and maintaining precise and strategic Daubert challenges.
In Moore v. Intuitive Surgical, Inc., No. 19-10869, the plaintiff underwent a laparoscopic hysterectomy in which her surgeon used a robotic miniature electrified scissor tool manufactured by the defendant. Following surgery, the plaintiff experienced, among other things, abdominal pain and eventually learned she had sustained internal burns to her left ureter during the surgical procedure. The tool was recalled by the manufacturer a few months after the plaintiff’s procedure, and the plaintiff filed suit.
The plaintiff retained Dr. Michael Hall as an expert witness to testify regarding the standard of care in hysterectomy procedures and the cause of the plaintiff’s injuries. Dr. Hall is a board-certified OB/GYN who practices gynecologic surgery and teaches Obstetrics and Gynecology at the University of Colorado’s medical school, among other qualifications. During his more-than-forty-year career, Dr. Hall had performed more than four thousand hysterectomies. But Dr. Hall had never used the robotic miniature electrified scissor tool in his procedures.
The defendant moved to exclude Dr. Hall’s testimony, arguing that because he does not use the scissor tool, he was not qualified to testify to the cause of the plaintiff’s injury and his opinions were unreliable. According to the defendant, it was irrelevant that Dr. Hall had performed the same procedure with different tools thousands of times. Following a two-day Daubert hearing, the United States District Court for the Middle District of Georgia agreed with the defendant that Dr. Hall was not qualified and excluded his expert testimony. Specifically, the district court found that Dr. Hall could not adequately describe the differences between the instruments used in robotic surgery and traditional surgery, the differences in initial port placement, or the orientation or trajectory of the instruments during the operation. Because Dr. Hall was the plaintiff’s only causation expert, the district court also entered summary judgment.
On appeal, the Eleventh Circuit held the district court erred in its application of Daubert. The Circuit Court clarified that this “case concerns only the first prong of the admissibility inquiry—an expert’s qualifications” and, relying on State v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004), held that “the district court abused its discretion in finding that these perceived deficiencies in Dr. Hall’s testimony rendered him unqualified to provide expert testimony.” The Eleventh Circuit concluded that the deficiencies identified by the district court each concerned “the reliability of Dr. Hall’s opinion,” and “not his qualifications to testify.”
The Circuit Court also clarified the level of scrutiny to be applied to the qualifications prong of Rule 702. The district court’s order, citing language from Frazier, ruled that to “determine whether Dr. Hall is qualified, [it] must conduct an ‘exacting analysis of the foundations’ of his opinion.” The Court of Appeals found this an incorrect reading of Frazier, as it had “never used this ‘exacting analysis’ language in reference to an expert’s qualifications.” This language, according to the court, only applies to “an expert’s methodology in reaching his opinion,” part of “the reliability prong” of the analysis.
The Eleventh Circuit found that the record did not suggest “that robotically assisted laparoscopic hysterectomies should be treated as a different field of expertise for Daubert purposes than traditional laparoscopic hysterectomies.” To the contrary, the defendant’s expert “said that a hysterectomy is performed in the same manner and carries the same risks regardless of whether or not a robot is used.” Ultimately, the court held that the case law “does not support a bright line rule that an expert witness is qualified to testify regarding the cause of an injury only if he personally has used the allegedly defective product.”
Finally, the Eleventh Circuit rejected defendant’s alternative ground for affirming: the lack of reliability of Dr. Hall’s testimony. Defendant had argued the reliability prong in the Daubert motion, but the reliability of the testimony was not addressed in the district court’s announcement of its “preliminary view” that Dr. Hall “was not qualified to testify as to causation,” and thus “focused the examinations at the Daubert hearing on Dr. Hall’s qualifications, rather than the reliability of the testimony.” The Circuit Court declined to rule “in the first instance in the face of an undeveloped record” because it would be usurping the role of the trial court. Accordingly, it reversed and remanded for further proceedings.
Moore v. Intuitive Surgical, Inc. underscores why it is important for defendants to be precise in their Daubert challenges, even when the trial court is inclined to make a favorable ruling. Here, defendant’s Daubert victory was fleeting because “the district court applied the wrong legal standard by conflating the reliability criterion with the qualifications criterion,” even though defendant challenged both prongs and might have been able to establish the opinion’s lack of reliability at the Daubert hearing.