United States District Court, S.D. Mississippi, Northern Division
For Bobby Harris, Plaintiff: Douglas R. Plymale - PHV, LEAD ATTORNEY, PRO HAC VICE, PLYMALE LAW FIRM, New Orleans, LA; Ian A. Brendel, MALONEY-FROST, LLP, Biloxi, MS.
For Stryker Spine, an unincorporated division of Howmedica Osteonics Corp, Defendant: John W. Smith T - PHV, LEAD ATTORNEY, PRO HAC VICE, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham, AL; W. Wayne Drinkwater, Jr., LEAD ATTORNEY, Simon T. Bailey, BRADLEY ARANT BOULT CUMMINGS LLP - Jackson, Jackson, MS.
MEMORANDUM OPINION AND ORDER
Tom S. Lee, UNITED STATES DISTRICT JUDGE.
This cause is before the court on the motion of defendant Stryker Spine, an unincorporated division of Howmedica Osteonics Corporation (collectively Stryker),
for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and its related motion to exclude testimony of Dr. Michael Molleston. Plaintiff Bobby Harris has responded to the motions and the court, having considered the memoranda of authorities, together with attachments, concludes that both motions should be granted.
On December 24, 2010, following a single-vehicle accident in which he suffered severe injuries to the cervical spine, plaintiff Bobby Harris underwent cervical discectomy and spinal fusion surgery at University of Mississippi Medical Center in which a spinal plate manufactured by defendant Stryker Spine was implanted in his spine at the C6-7 level. The complaint alleges that device was defective and failed, necessitating emergency revision surgery on February 18, 2011. Plaintiff filed the present product liability action to recover damages he alleges he suffered as a result of defendant's allegedly defective product. In support of his claim of product defect, plaintiff relies on the expert report and testimony of Dr. Michael Molleston. Defendant has filed related motions to strike Dr. Molleston's testimony pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and for summary judgment based on the lack of admissible evidence that the subject device was defective.
A review of the parties' submission reveals the following undisputed facts. On December 22, 2010, Harris was involved in an automobile accident in Noxubee County, Mississippi in which he was ejected from the vehicle. After being taken by ambulance to Baptist Memorial Hospital in Columbus, Mississippi, he was airlifted to the University of Mississippi Medical Center (UMMC) in Jackson, where he was treated by Dr. William Hanigan, a neurosurgeon. Plaintiff's spine injuries were severe, and included a fracture and instability at the C6-7 level. On December 24, 2010, Dr. Hanigan performed an anterior cervical discectomy and spinal fusion at Harris's C6-7 level. In this procedure, the surgeon removes the damaged invertebral disc from the patient's spine and replaces the disc with a bone graft, or " bone plug," that serves as a bridge between the two vertebrae to create a spinal fusion. The surgeon may choose among a number of different types of bone graft materials, including the patient's own bone (autograft) and donor bone (allograft). In plaintiff's case, Dr. Hanigan used natural bone material that had been extracted from a cadaver. The bone graft and vertebrae are often immobilized and held together with metal plates and screws that are used to provide temporary stability until the patient's vertebrae fuse. For plaintiff's December 24, 2010 surgery, Dr. Hanigan selected a metal plate and screws manufactured by defendant, identified as the Stryker Reflex Hybrid Anterior Cervical Plate device.
On his return to UMMC for a follow-up examination on February 14, 2011, a CT scan of Harris's spine was done. The radiology report based on the scan indicated a " Factured intervertebral device at C6-7 with the posterior portion retro-pulse into the central canal resulting in at least mild central canal stenosis and possibly cord compression and cord kinking." The bone graft material had fractured, the screws holding the metal plate had backed out and the bones in plaintiff's spine had failed to fuse. As a result, plaintiff underwent revision surgery on February 18, 2011. At that time, Dr. Hanigan performed a more complicated posterior cervical fusion procedure, in which he removed the original plate, screws and graft material and re
placed them with more extensive hardware.
Plaintiff filed the present action on December 20, 2012, alleging putative claims of negligence in the design, manufacture, testing, marketing and distribution of the subject device; strict liability for alleged manufacturing and design defects, inadequate warnings and breach of implied warranties; breach of express warranty; and negligent and intentional misrepresentation and fraudulent concealment. With Harris's submission in December 2013 of the expert report for Harris's sole expert, Dr. Michael Molleston, M.D., and the subsequent deposition testimony of Dr. Molleston in January 2014, Harris effectively abandoned all but his theories of product liability based on manufacturing defect and failure to warn.
Stryker has now moved to exclude the expert testimony of Dr. Molleston based on Rule 702 and Daubert, contending he is unqualified to render opinions about an alleged defect connected to the manufacture of the subject product, and asserting further that his opinions concerning the manufacture of the product must be excluded as they are neither supported by sufficient facts and data nor a reliable methodology. Defendant relatedly moves for summary judgment, contending that since plaintiff must demonstrate that the defendant's device was defective in order to survive summary judgment, and since the only evidence he has offered to prove a defect is Dr. Molleston's opinion, then it follows that since Dr. Molleston's testimony is due to be excluded, plaintiff's claims fail as a matter of law.
The Mississippi Products Liability Act (MPLA), which applies " in any action for damages caused by a product," Miss. Code Ann. § 11-1-63, provides, in relevant part, as follows:
(a) The manufacturer ... of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i)(1) The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the ...