• Fuesting v. Zimmer, Inc. No. 02-2251 (C.D. Ill. Jan. 26, 2009)
  • April 3, 2009 | Authors: Karen A. Gibbs; Bernadette M. Stafford
  • Law Firm: Crowell & Moring LLP - Irvine Office
  • On remand from the Seventh Circuit Court of Appeals, and after finding the plaintiff’s expert testimony inadmissible under Rule 702 or the Daubert Test, the U.S. District Court for the Central District of Illinois granted summary judgment against Zimmer, Inc. (“Zimmer”).

    Fuesting had sued Zimmer for breach of the implied warranty of merchantability, products liability and negligence, arguing Zimmer's sterilization of Fuesting’s knee prosthesis by gamma irradiation in air (“GIA”) rendered it defective. At trial, Fuesting’s expert witness, Dr. Pugh, testified that GIA caused the prosthesis to oxidize and delaminate, resulting in premature failure.

    An Illinois jury returned a $650,000 verdict for Fuesting. On appeal by Zimmer, the Seventh Circuit vacated the judgment, claiming Dr. Pugh's testimony did not meet the requirements for admissibility of expert testimony under Federal Rule of Evidence 702 and the standards set forth in Daubert. The appellate court concluded it did not have authority to vacate the judgment and therefore remanded the case and ordered a new trial.

    On remand to the district court, Zimmer moved for summary judgment and also argued that Fuesting’s second expert, Dr. Rose, did not meet the Daubert standard. The district court agreed with Zimmer and found Dr. Rose had not bridged the analytical gap between the basic principles which Zimmer did not dispute and Dr. Rose’s complex conclusions. For example, Dr. Rose had not, and could not, show that the prosthesis failed because of the sterilization method used. The court further explained that a clear relationship does not equal causation and that the analytical gap in the case was crucial because Dr. Rose’s testimony did not account for any other possible reason for failure of the prosthesis. The court concluded that in order for Fuesting to prevail on his strict liability and negligence claims, he was required to show that the prosthesis was in a defective condition when it left the manufacturer's control as well as a causal link between the defect and the injury. Without the proffered expert testimony, Fuesting could not make that showing and, therefore, could not prevail on his claims.