So The Artist won.  Some of us (maybe only one of us) didn’t even know it was a silent movie.  Imagine going to that movie without knowing it was silent.  That’s failure to warn.  At least when Mel Brooks made Silent Movie you knew what you were getting.  And in his movie the French guy spoke. 

Alright, on to legal stuff.  We found a number of interesting Daubert decisions in the court’s opinion in Hershberger v. Ethicon Endo-Surgery, Inc., No. 2:10-cv-00837, 2012 U.S. Dist. LEXIS 18799 (S.D.W. Va. Feb. 15, 2012), so we thought we’d discuss a few of them here.  This is a device case.  The plaintiff claimed that a stapler used during her colostomy reversal procedure was defectively manufactured because it didn’t contain the staples that it was supposed to contain, requiring a second stapling procedure.  Id. at *2-4.  The defense, on other hand, argued that the stapler did in fact contain staples but one of the surgeons prematurely and negligently discharged the stapler.  Id.  As trial approached, the parties filed a number of motions in limine to exclude testimony from experts and treating physicians related in one way or the other to this issue. 

The attending surgeon sought to testify that no staple was discharged at all during the first firing of the stapler – supporting plaintiff’s claim that it was defective – but rather a staple found in the plaintiff instead got there during a second stapling.  Id. at *16-19.  The defense’s response was based on a simple and seemingly effective argument.  The attending physician had already admitted that he didn’t see any staples inside the plaintiff during the procedures so he could not testify on when it got there.  The court allowed the testimony, however, ruling that the doctor’s opinion was “a product of [the doctor’s] experience and observations in the role of treating physician.”  Id. at *18.  We aren’t too surprised by this.  This ruling falls into a category that we’ve often seen at trial, whether appropriate or not: treating doctors get to testify about an awful lot of things as long as the testimony can be linked to their treatment of the plaintiff.

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