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Eleventh Circuit Court of Appeals rules in medical device product liability case that plaintiff expert’s lack of experience performing robotic as opposed to conventional laparoscopic hysterectomies did not disqualify him from testifying about whether a robotic tool caused the plaintiff’s injuries

On April 22, 2021, in Moore v. Intuitive Surgical, Inc., No. 19-10869, the Eleventh Circuit Court of Appeals reversed a summary judgment that had been entered by the district court for the defendant medical device manufacturer in a product liability lawsuit. The lawsuit was filed by a patient who claimed to have suffered injuries during a hysterectomy because of her surgeon’s use of the miniature electrified scissors manufactured by the defendant. The issue on appeal was whether the district court erred in excluding the testimony of the plaintiff’s medical causation expert on qualification grounds becausethe expert had never performed a robotic laparoscopic hysterectomy surgery and had consequently never used the sort of miniature electrified scissors that allegedly malfunctioned in this case. The district court concluded that the expert 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, and that these differenced were critical to the question whether the alleged microcrack on the shaft of the scissors could have caused the injury to a specific portion of the plaintiff’s ureter. The Eleventh Circuit found that the alleged deficiencies pointed out by the district court went to the reliability of the proffered opinion and not the expert’s qualifications to testify, and that the district court further imposed an evidentiary burden that was too high by requiring that the expert be a user of the defendant’s product to be qualified to testify as an expert. The Eleventh Circuit did not reach the issue of whether under Daubert the expert’s testimony should be excluded as being unreliable because that issue had not been specifically ruled upon by the district court.