United States District Court, W.D. Virginia, Roanoke Division
DEIRDRE WILLIAMSON JAIN, and EMILY RUTH WILLIAMSON, Individually, and as Co-Administrators of the Estate of Joseph Seth Williamson, II, Deceased, Plaintiffs,
ABBOTT LABORATORIES, INC., et al., Defendants.
MICHAEL F. URBANSKI, District Judge.
This is a products liability action brought by Deirdre Jain and Emily Williamson (collectively "Plaintiffs"), against Abbott Laboratories, Inc., Abbott Laboratories and Hospira, Inc. (collectively "Defendants"), concerning the alleged misprogramming of a patient-controlled analgesia pump. Plaintiffs allege that Defendants negligently failed to provide adequate instructions for manually programming the drug concentration into the pump, failed to warn of the defect and breached express and implied warranties rendering the pump unreasonably dangerous and resulting in the death of Joseph Seth Williamson, II ("Williamson").
Before the court are several motions. In two pending motions in limine, Defendants seek to exclude the expert testimony of Drs. Shelly Collins and Kenneth Laughery (Dkt. Nos. 73 and 71). Defendants' motion to exclude the expert testimony of Dr. Arden (Dkt. No. 49) is the subject of a report and recommendation issued by the magistrate judge on October 8, 2014 (Dkt. No. 60). Defendants' objection to that report is currently pending before the court (Dkt. No. 67). Defendants also move for summary judgment (Dkt. No. 69).
The issues have been fully briefed, and the court heard oral argument on November 25, 2014. For the reasons set forth below, the motions to exclude Dr. Shelly Collins (Dkt. No. 73) and Dr. Kenneth Laughery (Dkt. No. 71) are GRANTED in part and DENIED in part. Defendants' objection to the magistrate judge's report and recommendation as to Dr. Jonathan Arden (Dkt. No. 67) is OVERRULED and the report and recommendation (Dkt. No. 60) is ADOPTED in its entirety. Finally, because genuine issues of material fact exist in this case, the motion for summary judgment (Dkt. No. 69) is DENIED.
On October 6, 2011, Williamson underwent hernia repair surgery at Montgomery Regional Hospital ("MRH") in Blacksburg, Virginia. In order to manage post-operative pain, Williamson's doctor prescribed him Dilaudid, a narcotic pain medication, to be administered via a patient-controlled analgesia pump. Williamson's doctor prescribed a continuous dose of Dilaudid at 0.5 mg per hour, with a 0.2 mg patient-administered dose, a 20-minute lockout for patient-administered doses, and a 3 mg, 4-hour limit. The pump used at MRH was the Defendants' Hospira LifeCare PCA® 3 Infusion System ("PCA 3"). The PCA 3 uses either a pre-filled or custom vial also manufactured by Defendants to administer medication, and it utilizes a scanner to read a bar code printed on the vial. After scanning the barcode, the PCA 3 either recognizes the vial as a pre-filled vial of a particular medication or a custom vial requiring the user to provide more information about the medication.
At the time of Williamson's surgery, MRH used custom vials to administer Dilaudid. Thus, after inserting a vial of Dilaudid into the PCA 3, the user, usually a nurse, would have to program the concentration of the drug along with the dosage prescribed by the patient's physician into the PCA 3. The concentration of Dilaudid in the custom vials at MRH was 1.0 mg/ml. Williamson's primary nurse asked another on-duty nurse to assist her with the programming of the PCA 3 for Williamson. While programming the PCA 3, the nurses entered ".2" for the drug concentration rather than "1.0". Plaintiffs contend that the instructions and warnings on the PCA 3 pump were inadequate and misleading resulting in the programming error. Significantly, Plaintiffs point to the fact that a screen on the PCA 3 pump states "CONFIRM CONCENTRATION TO PHYSICIAN RX." Plaintiffs allege that this screen misled the nurses into manually programming the wrong concentration of Dilaudid into the pump, causing Williamson to receive a much a higher dose of Dilaudid than that prescribed by his physician. At 1:10 a.m. on October 7, 2011, Williamson's nurse found him unresponsive, and he was pronounced dead shortly thereafter. Plaintiffs contend that the overdose of Dilaudid caused Williamson's death.
Plaintiffs have identified Drs. Jonathan Arden, Shelly Collins, and Kenneth Laughery as experts to testify at trial. Defendants have moved to exclude all three expert witnesses and also move for summary judgment. The court will address each of these motions in turn.
A. Objection to Report and Recommendation Regarding Dr. Arden (Dkt. No. 67).
Plaintiffs seek to call Dr. Arden as a rebuttal expert witness on the cause of Williamson's death. Defendants have objected, claiming the identification of Dr. Arden was untimely. Finding no surprise or prejudice to the Defendants, the magistrate judge recommended that the motion to exclude Dr. Arden be denied. After conducting a de novo review of Defendants' motion to exclude Dr. Arden, the court agrees with the magistrate judge's recommendation that the untimely disclosure of Dr. Arden was harmless. Plaintiffs disclosed Dr. Arden in sufficient time to allow his deposition to be taken before the close of discovery. Because Defendants had the opportunity to depose Dr. Arden before the close of discovery, Dr. Arden's testimony is relevant to an important issue in this case, and finding no surprise or prejudice in allowing Dr. Arden to testify as a rebuttal witness, the court finds that the untimely disclosure of Dr. Arden was harmless pursuant to Federal Rule of Civil Procedure 37(c)(1). See Hoyle v. Freightliner, LLC , 650 F.3d 321, 329 (4th Cir. 2011). Therefore, Defendants' objection (Dkt. No. 67) is OVERRULED, the report and recommendation (Dkt. No. 60) is ADOPTED in its entirety, and Defendants' motion to exclude Dr. Arden (Dkt. No. 49) is DENIED.
B. Daubert Motions Regarding Expert Witnesses Drs. Collins and Laughery (Dkt Nos. 73 and 71).
When expert opinion evidence is offered, the court is obligated to serve as a gatekeeper to determine whether an expert witness is qualified and whether an expert opinion is grounded in objective underlying scientific methodology, as opposed to mere speculation or conjecture. Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589-590, 595 (1993); Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141-142 (1991). The applicable rule governing admissibility of expert testimony is Federal Rule of Evidence 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702; see also Advisory Committee Notes to Rule 702, 2000 Amendments ("A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule.") The applicable rule governing the legitimacy of underlying bases of opinion ...