Alabama has all the time had some reasonably uncommon jurisprudence. In product legal responsibility, the Yellowhammer State doesn’t have negligence or strict legal responsibility, however reasonably a hybrid referred to as the Alabama Prolonged Producers Legal responsibility Doctrine (“AEMLD”). See Casrell v. Altec Industries, Inc., 335 So.2nd 128, 132-33 (Ala. 1976). Extra lately, the Alabama Supreme Courtroom twice adopted the intense pro-plaintiff innovator legal responsibility idea in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and outmoded, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014).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 lately than that, the identical courtroom approved plaintiffs to perjure themselves and declare that they’d have ignored their medical doctors’ suggestions so as to declare causation in realized middleman circumstances. Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022). Most lately, and most notoriously, the Alabama Supreme Courtroom declared frozen embryos to be folks – not 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 may try and depend 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 practically as infamous – Alabama regulation resolution lately. Ahmed v. Johnson & Johnson Healthcare Programs, 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 gadget 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 Provides No Knowledgeable Proof Relating to Medical Causation”).
That’s simply plain bizarre. We might agree or disagree with different elements of Ahmed (see under), however nothing else go away us scratching our heads. As we identified lately, the Sixth Circuit grew to become the primary federal courtroom of appeals to look at all fifty states and maintain that each one in all them requires skilled medical testimony to ascertain causation:
[A]s an MDL, the difficulty 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 circumstances 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 indicate normal causation, not less than the place the problems are medically advanced and out of doors widespread data 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 and marketing, Gross sales Practices & Merchandise Legal responsibility Litigation, 227 F. Supp.3d 452, 469-78 (D.S.C. 2017) (accumulating circumstances), 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 (2nd 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 concern in 2019, entitled “Prescription Medical Product Causation – Knowledgeable Required.” That publish collected all caselaw, as of 2019 (it’s not up to date) to display that each state within the union requires skilled causation in advanced product legal responsibility circumstances. At that time, along with the 2 choices cited in Onglyza, we counted 5 different MDL choices for a similar proposition.
As well as, we had the next to say about Alabama regulation:
Beneath Alabama regulation, skilled testimony is required to ascertain causation the place “the character and origin” of the harm is “past the understanding of the common individual.” Ex parte Trinity Industries, Inc., 680 So.2nd 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 fancy and technical medical gadget and the distinctive physiological and medical circumstances of the affected person by which it’s implanted is a topic on which no peculiar juror might rationally be anticipated to have data. The web result’s that, with out the good thing about skilled testimony, an inexpensive jury couldn’t presumably make a dedication . . . that [plaintiff’s] accidents had been brought on by a . . . defect within the [product].
Hughes v. Stryker Gross sales Corp., 2010 WL 1961051, at *5 (S.D. Ala. Could 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 fancy medical gadget, the absence of skilled testimony would drive a jury to interact in hypothesis and conjecture on problems with defect and causation,” thus “courts routinely require skilled testimony in such issues.” Id.
Thus, “Alabama courts persistently have opined that . . ., when the product at concern is of a fancy 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.2nd 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 usually is required to ascertain normal and particular causation in product legal responsibility circumstances”); Brantley v. Worldwide Paper Co., 2017 WL 2292767, at *16 (M.D. Ala. Could 24, 2017) (“The plaintiffs should set up each normal and particular causation via 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 ascertain each normal and particular causation”), aff’d, 720 F. Appx. 1006 (eleventh Cir. 2018); Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp.2nd 1316, 1332 (M.D. Ala. 2006) (plaintiff “should current skilled proof on normal 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 harm, there isn’t a poisonous tort”); Emody v. Medtronic, Inc., 238 F. Supp.2nd 1291, 1295 (N.D. Ala. 2003) (“A necessary component of all product legal responsibility circumstances is skilled testimony . . . {that a} defect was the medical reason for plaintiff’s claimed accidents.”).
So how might Ahmed go up to now astray?
Ahmed will not be a case the place the plaintiff had no specialists in any respect. Reasonably, 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 gadget itself. 2024 WL 693078, at *6. Regardless that this engineer has “by no means analyzed” any type of plastic implant earlier than Ahmed, he was discovered certified attributable to his normal “background and a long time of expertise.” Id. Nonetheless, as even Ahmed admitted, “engineers are usually not 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 expect 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 typically”; practically a month later, she fell; the subsequent 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 motive (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 occasion.” Id. (quotation and citation marks omitted).
[Defendant’s medical] opinion is that plaintiff’s “medical procedures to restore and change her proper hip had been primarily unsuccessful for patient-specific causes and never as the results of any defect within the . . . parts used.” . . . [Plaintiff’s rebuttal witness] will then rebut [the defense] opinion that patient-specific components had been accountable by testifying that [plaintiff’s] failed complete hip substitute 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 “might not testify in plaintiff’s case-in-chief to ascertain 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 prognosis on this case and was not required to take action.” Id. at *15. That signifies that this medical witness couldn’t provide the vital 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 elementary 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 precipitated Plaintiff’s accidents was in dispute, it will 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 vital 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 harm doesn’t present causation. Drawing such a conclusion from temporal relationships results in the blunder of the publish hoc ergo propter hoc fallacy. The publish hoc ergo propter hoc fallacy assumes causality from temporal sequence. . . . It’s referred to as a fallacy as a result of it makes an assumption primarily based 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 won’t be misled by the publish hoc ergo propter hoc fallacy − the fallacy of assuming that as a result of a organic harm occurred after [an event], it will need to have been brought on by [that event].” Id. (quotation and citation marks omitted).
Nonetheless, Ahmed held, primarily based solely on the engineering testimony about defect – that “on this case it’s definitely a ‘pure inference’ {that a} juror might make via 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 end in 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 gadget – seems each unprecedented and unsupported. Even granting plaintiffs all the things their engineering skilled might opine: that the gadget was “faulty” and subsequently might fail for the design causes so acknowledged, nothing excludes plaintiff’s fall the day earlier than because the medical reason for the “eccentric” positioning that led to the revision surgical procedure and what adopted.
Except for that vast error, nevertheless, not all of Ahmed was horrible. Particularly, one other side of the plaintiff’s identical engineering skilled’s testimony, regarding purported various 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 premise for that opinion:
[The expert] is excluded from testifying at trial concerning any various design proposals which will have been out there to Defendants in manufacturing the allegedly faulty [device]. It seems from the [record] that he merely conceptualized potentialities when suggesting adjustments to the [device design], that are an insufficiently dependable foundation for proposing various designs.
Id. (citations and citation marks omitted). “[A]pplicable case regulation means that the failure to check a proposed various design or cite one other’s testing of the design is deadly to the admissibility of mentioned testimony.” Id. Plaintiff’s failure to ascertain any various design required dismissal of each plaintiff’s AEMLD and negligent design claims, for which another design is a necessary component. 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 flawed and unprecedented.
