Ninth Circuit Reverses Exclusion of Plaintiff’s Expert in Medical Device Case

You know you’re in trouble as defense counsel when the appellate court’s opinion starts with the sentence: “[The Plaintiff] has suffered a miserable ordeal since she had elbow surgery. ” That can only suggest that reading the court’s ruling will be a miserable ordeal for the defendant. So begins the opinion in last week’s Primiano v. Cook, — F.3d —-, 2010 WL 788906 (9th Cir. March 10, 2010) [PDF]. Analyzing the admissibility of expert medical testimony at the summary judgment stage, the Ninth Circuit reversed the ruling of the trial court, which had excluded the Plaintiff’s medical expert and granted the defendants’ motion for summary judgment.

The Plaintiff, a 36 year old woman, suffered a fall in her kitchen, broke her right elbow, and ultimately required elbow replacement surgery. Her surgeon used an artificial elbow manufactured by the Howmedica Osteonics Corporation. Apparently, during the surgery, the surgeon realized that one of the component parts of the artificial elbow was intended to be used for a left elbow, not a right elbow. He then contacted a representative of Howmedica, who indicated that the component part was symmetrical, equally functional, and thus, able to be used for the surgery on the Plaintiff’s right elbow with only minor modifications. Following the surgery, all seemed to be well initially, but the Plaintiff ultimately experienced difficulties with the elbow replacement and required four additional surgeries, including the removal and replacement of the original artificial joint. Subsequent analysis revealed that the original artificial elbow had excessive wear. She then sued Howmedica, as the manufacturer of the device, its parent company, a Howmedica sales representative, and her surgeon under various theories of recovery, including products liability (the only cause of action at issue on the appeal). The suit was heard by the Honorable James C. Mahan of the U.S. District Court for the District of Nevada.

Noting that the prosthesis had been “malaligned,” the defense experts also argued that the life of the device would be limited due to the Plaintiff’s relative youth, level of activity, and her pre-existing rheumatoid arthritis. (Young people wear out artificial joints more quickly than older people, they said.). The district court excluded the testimony of the Plaintiff’s expert, Dr. Arnold-Peter Weiss, who had opined that “the polyethylene bushing had worn through in less than eight months, ‘not a usual or expected circumstance.'” The district court appeared concerned by the fact that Dr. Weiss had neither seen nor spoken with the Plaintiff as well as the fact that he could testify that the device failed but not why it did so. With no expert testimony supporting the Plaintiff’s case, the court granted the defendants’ motion for summary judgment. On appeal, the Ninth Circuit addressed the application of Federal Rule of Evidence 702 and Daubert to the testimony of expert physician witnesses. Analyzing the background, qualifications, and testimony of Dr. Weiss, the Ninth Circuit noted that they “[left] room for only one conclusion regarding its admissibility. It had to be admitted.” In so doing, the court noted:

Nevada law establishes that “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” In Nevada, a plaintiff need not “produce direct evidence of a specific product defect [or] negate any alternative causes of the accident.” An “unexpected, dangerous malfunction” suffices. Since Dr. Weiss, with a sufficient basis in education and experience, testified that the artificial joint “fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function,” that was enough to assist the trier of fact. He did not have to know why it failed.

The district court’s other concerns, that Dr. Weiss never saw or talked to Ms. Primiano, and there was no publication supporting his opinion that the device failed extraordinarily early, might be useful to the jury as impeachment, but neither furnished an adequate basis for excluding his opinion. What he most needed to see was what was inside her arm, not outside it, and he did. He saw the x-rays. He also saw the polyethylene from the implant installed in Primiano’s first surgery. As for lack of a publication backing his opinion up, Daubert offers several reasons why an opinion unsupported by peer-reviewed publication may be admissible, and Dr. Weiss furnished another one: that the phenomenon is so extraordinary that the specialists who publish articles do not see it in their practices.

(Emphasis added).

The Ninth Circuit then reversed the trial court’s granting of the defendants’ motion for summary judgment. An interesting result, as the opinion suggests that an expert who has never examined – or presumably even met – an injured Plaintiff can create a fact issue on summary judgment in a products liability action by claiming that a medical device failed too early without articulating why it did so. The district court had noted that evidence of rapid wear did not necessarily make the device defective. The defense experts did offer an explanation for the wear of the device, namely that devices tend to wear far more quickly when placed in the joints of younger – and presumably, more active – patients. Further, the defense pointed to the fact that this Plaintiff suffered from rheumatoid arthritis which further contributed to the wear. Thus, while the defense posited a specific reason for the rapid wear of the device, the Plaintiff’s expert simply offered the conclusion that the device should have lasted longer than it did. That is now enough to defeat summary judgment. (Interestingly, the Plaintiff did not sue the surgeon for malpractice but only as an agent of the manufacturer of the artificial elbow).

South Carolina Supreme Court Reverses $18 Million Products Liability Verdict

As we briefly reported yesterday, the South Carolina Supreme Court yesterday reversed an $18 million jury verdict against the Ford Motor Company, finding that the trial court erred in admitting the testimony of two of the plaintiffs’ experts and admitting evidence of prior sudden acceleration accidents. Watson v. Ford Motor Co., No. 26786 (S.C. March 15, 2010). This case is very instructive on the duties of the trial court as a gatekeeper of the admission of evidence and vividly illustrates how plaintiffs may not simply rest on the mere fact that an accident happened in attempting to hold a defendant liable.

The case involves the sudden acceleration of a vehicle, making it a very timely topic. On December 11, 1999, Sonya L. Watson was driving her 1995 Ford Explorer with Patricia Carter and two other passengers in the vehicle when she lost control, veered off the interstate, and rolled four times. Carter did not survive the accident and Watson was rendered a quadriplegic. Watson and Carter filed a products liability action against Ford, claiming that the accident occurred because the cruise control system was defective, and that their injuries were enhanced because the seat belts were defective.

At trial (which was conducted in Greenville County, SC), the Plaintiffs presented (and the trial court allowed) three types of evidence that was the subject of Ford’s appeal. First, the Plaintiffs presented testimony of Dr. Antony Anderson, an electrical engineer from the United Kingdom. He opined that electromagnetic interference (“EMI“) took hold of the vehicle’s cruise control system, causing it to suddenly accelerate. Dr. Anderson further testified that Ford could have prevented the accident through an alternative design. Second, the Plaintiffs presented the testimony of Bill Williams, a purported automotive industry veteran, as an expert on cruise control diagnosis. Finally, the Plaintiffs offered evidence of similar accidents involving sudden acceleration in Ford Explorers.

The jury determined that Ford was liable to Plaintiffs on their claim that the Explorer’s cruise control was defective and awarded Watson $15 million in compensatory damages and the Estate of Carter $3 million in compensatory damages. Thereafter, Ford appealed, asserting the trial court erred in “. . . qualifying Bill Williams as an expert in cruise control systems[,] allowing Dr. Anderson’s testimony regarding EMI and alternative feasible design[, and] allowing evidence of other incidents of sudden acceleration in Explorers.”

Yesterday, on those grounds, the Supreme Court granted Ford’s appeal. In an opinion authored by Chief Justice Jean Toal, the South Carolina Supreme Court agreed with Ford and found that the trial court committed prejudicial error in allowing evidence at trial that did not meet the threshold admissibility requirements in South Carolina. It should be noted that South Carolina has not adopted the Daubert test and instead follows its own test set forth in State v. Council, 335 S.C. 1, 20, 515 S.E.2d 515, 518 (1999) and its progeny. Under that test, South Carolina courts have generally been fairly liberal in qualifying experts to testify at trial, and motions to exclude brought under State v. Council are not often granted.

The Court set forth the three preliminary findings that all trial courts must make in South Carolina before a jury may consider expert testimony: (1) the subject matter is beyond the ordinary knowledge of the jury, (2) the expert has the requisite knowledge and skill to qualify as an expert in the particular subject matter, and (3) the substance of the testimony is reliable.

The Court first found that there was “no evidence to support the trial court’s qualification of [Bill] Williams as a expert in cruise control systems” because Williams had no professional experience working on cruise control systems prior to litigation, had not conducted any comparison of the Explorer’s cruise control system to any other system, and had not taught or published papers on cruise control systems.

Next, the Court found that the “trial court erred in admitting Dr. Anderson’s testimony as to both an alternative feasible design and his EMI theory.” In so doing, the Court stated that Dr. Anderson was not qualified to testify on that subject matter because “[h]e had no experience in the automobile industry, never studied a cruise control system, and never designed any component of a cruise control system.” Further, the Court found his testimony unreliable because he provided no support for his conclusion that an alternative design would have cured the alleged defect. With respect to Dr. Anderson’s EMI theory, the Court rejected his testimony because his theory had not been peer reviewed, his theory had not been tested, Dr. Anderson stated he could not replicate the alleged EMI or tell where it originated or what parts it affected.

Finally, the Court found that the Plaintiffs had failed to show that the incidents of sudden acceleration presented were similar to the incident at issue: the Explorers were made in different years and were different models. Further, the Court found that the Plaintiffs failed to “show a similarity of causation between the malfunction in this case and the malfunction in the other incidents.”

Since the only evidence that the Plaintiffs presented to prove that the Explorer was defective was Dr. Anderson’s testimony, the Court ruled that the trial court committed prejudicial error by admitting his testimony. Further, the Court found it highly prejudicial that the Plaintiffs were allowed to present evidence of other incidents when they had not established a factual foundation to show substantial similarity. As a result, the Court reversed the jury’s verdict against Ford.

Justice Costa M. Pleicones concurred in the result only, agreeing with many of the points made by the majority but suggesting that he would have reached the same result by a different route.

(See here for some additional coverage on this matter from the Overlawyered blog and here for a brief report from Point of Law.)
(Disclosure: Gallivan, White & Boyd, P.A. was involved in the trial of this case. It represented the seat-belt supplier, a defendant that was found not liable by the jury. That said, we should also state that prior results do not constitute representations concerning potential results in other matters, the results of any case depends on the factual and legal circumstances of each, and nothing herein is intended to create any expectations of a result on the part of the reader.)

Medical Expert’s Testimony Deemed Incompetent, Not Sufficiently Fact-Based

We here at Abnormal Use are here to help. Over at the Drug and Device Law blog, author David Walk directs his readers’ attention to a new Eighth Circuit case about which he could not fully comment due to his firm’s involvement in that case. In light of that, and in the spirit of blogging collegiality, we thought we would do our own summary and analysis of the new opinion.

The facts are these: Plaintiff feels fine; Plaintiff takes prescription medication to reduce his cholesterol; Plaintiff develops symptoms of pain and fatigue. Such facts do not proof of causation make, the Eighth Circuit Court of Appeals affirmed. In re Baycol Products Litigation, —F.3d—, No. 08-3524, 2010 WL 711972 (8th Cir. March 3, 2010) [PDF]. In that case, the appellate court upheld summary judgment in favor of the drug-manufacturer defendant. In so doing, it held that the mere fact that a plaintiff developed physical symptoms in the months following his consumption of a defendant’s drug is insufficient to support a medical expert’s opinion that the drug was responsible for the onset of those symptoms.

The plaintiff was prescribed Baycol in February 2001 after being diagnosed with high cholesterol. On March 15 of that year, he began complaining to his doctor of general body pain and fatigue and of localized lower body pain. His complaints continued throughout July of 2001. In August, after taking the drug for approximately five months, the plaintiff discontinued his use of the drug after reading in the newspaper that Bayer had withdrawn Baycol from the market. He thereafter sent a letter to his doctor, in which he opined that Baycol was the cause of his symptoms. A subsequent blood test did reveal that the plaintiff had increased levels of creatine kinase, which is one indication of the presence of myopathy.

The plaintiff filed suit, alleging theories of strict liability, negligence, breach of express and implied warranties, and unjust enrichment. The court noted that it was the plaintiff’s burden, pursuant to his strict liability and negligence claims, to prove causation through the use of a medical expert. He essentially offered two. The first of those was in the form of “various generic causation experts” who would testify that Baycol was capable of causing myopathy. The report of the second expert garnered the most attention from the court. In it, the expert opined in what the court regarded as “conclusory remarks,” that causation was established because: (1) the pain was of new onset; (2) he had no other explanation for the injury; (3) the pain was “reasonably contemporaneous” with the plaintiff’s ingestion of Baycol; and (4) the pain didn’t get worse after he stopped taking the drug.

The court held that such conclusory remarks of “temporal association,” without sufficient evidentiary support, were wholly insufficient to prove that the defendant’s conduct contributed to the plaintiff’s injury. The court upheld entry of summary judgment in favor of Bayer on the basis of the plaintiff’s failure to present competent expert testimony on the issue of causation.

The court’s analysis with regard to these expert witness issues may provide ammunition for defendants during preliminary stages of litigation. It certainly highlights the importance of attacking the sufficiency of expert reports and of demanding competent, factually based testimony that creates triable issues of fact.

Peppermint Pattie: with or without insect larvae? Which would you choose?

Hopefully your answer to that question was without; however, for one consumer in Tennessee, she was a little too late to make that choice. Recently, the United States District Court of Tennessee was asked to decide whether the manufacturer, distributor, and retailer of a peppermint pattie was liable to a consumer who bit into candy which was infested with insect larvae. Gentry v. The Hershey Co., No. 2:08-0123, 2010 WL 457538 (M.D. Tenn. Feb. 3, 2010).

While Kim Gentry was shopping at Petco Animal Supplies, Inc., she picked up a York Peppermint Pattie that was for sale and bit into it. I know what you are all thinking: Yes, it is another issue that candy is sold at Petco and that people eat it in the store. After Ms. Gentry discovered that there was larvae inside the candy, she was treated for food poisoning. Since the event, she had undergone psychological counseling. Gentry filed a lawsuit against the manufacturer, The Hershey Company; the distributor, Liberty Distribution, L.L.C.; and the retailer, Petco, for strict liability, breach of implied and express warranties, negligence, and negligence se.

All three defendants filed motions for summary judgment. The Court considered Hershey’s and Liberty’s motions together, finding in favor of Hershey and Liberty on all causes of action. The Court found no evidence that the candy was in a defective condition or unreasonably dangerous when in the possession of Hershey or Liberty, relying on the opinions of all the experts in the case, which found that the pattie was contaminated while in the possession and control of Petco. Petco did not submit an expert to the contrary. Further, the Court stated that Liberty could rely upon the closed container doctrine because it received the pattie in a sealed corrugated cardboard box, stored it in a temperature-controlled environment, and had no ability to inspect the patties.

On Petco’s motion for summary judgment, the Court agreed with Petco on Gentry’s negligence per se claim as Gentry did not point to any statutory provision other than those under the Federal Food, Drug, and Cosmetic Act and Tennessee Food, Drug, and Cosmetic Act, which have been held to have no private action attached. The Court also found that Petco was not liable for strict liability because the applicable statute in Tennessee only permits a strict liability action against a seller when the seller is also the manufacturer or when the manufacturer cannot be located or is insolvent.

On the other hand, the Court found that it would allow Gentry’s breach of implied warranty claim to go to the jury reasoning that even though Gentry bit into the candy before she purchased it and even though Petco was primarily a merchant of animal food, nevertheless there was a “sale” and Petco was a “merchant.” Accordingly, Gentry’s claim fell within the applicable warranty statute. Finally, the Court found that there was an issue of fact with respect to Petco’s use of the sealed container doctrine as a defense to Gentry’s negligence claim. The Court found that there was a question whether Petco had a reasonable opportunity to inspect the candy before it was consumed by Gentry as the doctrine is not intended to protect a “seller from all liability to the consumer when the seller causes or allows the product to become adulterated.”

This case again shows the importance of expert testimony, as the use of expert testimony was instrumental in absolving Hershey and Liberty from strict product liability. As a result of this decision, Ms. Gentry will be able to present her case on implied warranty and negligence to a jury.

Plaintiffs’ Conspiracy Action Against Expert Witness who Allegedly Designed and Marketed Improved Product to Defendants Survives Motion to Strike

Arguably, a benefit of product liability litigation is that lawsuits demand that companies design products with greater safety measures and provide consumers with more pronounced, descriptive warnings. A guest speaker at my law school once told my class that engineers and automakers didn’t design many parts of the automobile — lawyers did. What he meant, of course, was that attorneys have filed suits against automakers when parts of a vehicle were allegedly unsafe or could have been designed with even greater safety measures in mind. This had, in turn, dictated the way that automakers designed that product from that point forward. The same guest speaker probably would not, however, have envisioned the alleged actions one California product liability attorney and his expert witness recently took in helping inspire this design process.

The California Court of Appeals recently refused to strike the plaintiffs’ complaint, where they filed suit against their attorneys and a consultant hired by their attorneys as an expert witness for negligence and conspiracy to commit fraud. Robles v. Chalilpoyil, —Cal.Rptr.3d—, (Cal. App. Jan. 27, 2010). The underlying action in Robles was a product liability claim initiated by the family of a man who burned to death when his wheelchair, which presumably was electric, ignited while he was occupying it. The family retained an attorney named Wills to represent them in their wrongful death action against the makers of the wheelchair.

According to the complaint, when the underlying case came up for trial, the family’s attorney requested a continuance on the basis that the plaintiffs’ expert witness had testified falsely in his deposition. The trial court thereby continued the trial to allow the attorneys to procure another expert witness. Before the new trial date, however, the attorney allegedly requested that each of the plaintiffs sign a waiver of any interest in a device that attorney Wills wanted to market to address the safety defects in the decedent’s wheelchair. Wills allegedly told the family members that the device would be designed and manufactured together with their former expert witness, based on research and information the expert witness had gathered in preparing for his expert testimony for trial.

After procuring each of the plaintiffs’ signatures and without retaining a new expert, the attorney “wrongfully pressured” the plaintiffs to settle the claim for $1 million. When several of the plaintiffs thereafter refused to accept the settlement proceeds, the Wills firm withdrew from the case and filed notice of lien for attorney fees.

The present case deals only with the issues of liability of the expert witness, as it was he who moved to strike allegations of the complaint as a SLAPP (Strategic Lawsuit Against Public Participation). According to the court, a SLAPP is a “meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.” The expert witness argued that his discussions with the attorney, during which the attorney solicited his agreement to allow his work product to be provided to the underlying defendants in the event of settlement, fell “comfortably” within the express terms of the anti-SLAPP statute. The California Court of Appeals disagreed, holding that such alleged discussions and agreements was not protected activity. It would not strike the plaintiffs’ complaint insofar as it alleged negligence and conspiracy to commit fraud against the former expert witness.

As noted, the court’s opinion deals with allegations of the complaint as alleged only against the expert witness. The attorney Wills, who represented the family in the underlying action, reportedly is the same person who was subsequently appointed to serve as a California Superior Court judge.

da Vinci on Trial

No, Leonardo da Vinci has not been brought back to life and put on trial, it is the new da Vinci Surgical System that was the subject of a recent products liability lawsuit that was decided in favor of the manufacturer by the Third Circuit on January 28, 2010.

In Mracek v. Bryn Mawr Hospital, No. 09-2042, 2010 WL 318372 (3d Cir. Jan. 28, 2010) [PDF], Plaintiff Ronland Mracek was diagnosed with prostate cancer and underwent a prostatectomy. Mracek was told by his surgeon that he intended to use the da Vinci robot to assist in the surgery. However, during Mracek’s surgery, the da Vinci robot became nonoperational and merely displayed error messages. As a result, Mracek’s surgeon used laparoscopic equipment instead.

Approximately one week after Mracek’s surgery, he suffered a gross hematuria and now has severe groin pain and erectile dysfunction. Thereafter, Mracek filed suit against the hospital and the manufacturer of the da Vinci robot, Intuitive Surgical, Inc., asserting claims for strict product liability, strict malfunction liability, negligence, and breach of warranty. The hospital was voluntarily dismissed from the case and Intuitive moved to dismiss the complaint. The United States District Court for the Eastern District of Pennsylvania agreed with Intuitive and dismissed Mracek’s complaint.

Mracek appealed to the Third Circuit solely on his strict malfunction liability claim. While a plaintiff can prove a defect using circumstantial evidence under the malfunction theory of liability, the plaintiff must still produce “evidence of the occurrence of a malfunction and . . . evidence eliminating abnormal use or reasonable, secondary causes for the malfunction.” Id. at *1 (internal citations omitted). Further, even if a plaintiff is able to prove the existence of a defect in this manner, he or she still has the burden of proving the defect caused the plaintiff’s injury and that the defect existed when it left the manufacturer’s control.

Mracek’s claim failed on multiple levels. First, the Third Circuit stated that the mere fact that “the robot displayed ‘error’ messages and was unable to complete the surgery” was insufficient evidence to eliminate reasonable, secondary causes for the malfunction. Id. at * 2. Further, the Court found that his own testimony and the testimony of two treating physicians regarding his pre and post operative condition was insufficient to prove that his erectile dysfunction and groin pain were caused by the robot’s alleged malfunction. The Third Circuit affirmed the dismissal of Mracek’s complaint. Id.

This opinion again demonstrates the importance of expert testimony in products liability actions. It instructs that merely coming to court and stating that a product malfunctioned is insufficient. Plaintiffs who fail to prove proximate cause should have their claims dismissed.

Medical Device: Summary Judgment in Favor of Manufacturer for Lack of Expert Testimony

A Connecticut district court finds that the mere fact a medical device broke is insufficient to withstand summary judgment in a products liability action. On December 17, 2009, the United States District Court for the District of Connecticut in Koger v. Synthes North America, Inc., No. 3:07-CV-01158, 2009 WL 5110780 (D. Conn. Dec. 17, 2009), affirmed the rule that when the alleged defective product is outside of the ordinary consumer’s common knowledge, expert testimony establishing defective condition and causation is required.

Koger suffered a posterior pelvic fracture in a motorcycle accident. The fracture was repaired using “two Synthes fully-threaded cannulated screws.” Approximately two years later, an x-ray of Koger’s pelvic region showed that the two screws had broken. As a result, Koger filed suit against Synthes North America, Inc., the manufacturer of the screws, pursuant to the Connecticut Products Liability Act.

Synthes moved for summary judgment arguing that Koger lacked the necessary expert testimony to prove her claim. The district court agreed with Synthes. Connecticut courts apply the Restatement (Second) of Torts consumer expectation test for strict liability, but use a “modified consumer expectation test” for products not within the ordinary consumer’s common knowledge. The Koger Court found that the Synthes screws were outside the ordinary consumer’s common knowledge and subject to the “modified consumer expectation test.” Therefore, proof of the product’s defective condition and the causal link required expert testimony.

Koger submitted the opinion of a medical doctor that corrosion of the screws “could be the cause of the breakage.” However, Synthes submitted an expert opinion that provided that the screws broke due to nonunion of her pelvic area and not because they were defective. The Court found Koger’s evidence insufficient as it did not establish that it was “more probable than not that a defect caused the injury.”

In a final attempt to survive Synthes’ motion for summary judgment, Koger argued the “malfunction doctrine,” which provides that a defect can be inferred by circumstantial evidence. The Court rejected her argument stating that this case required complex medical and technical expert testimony to determine whether the product was defective and that Koger failed to provide such expert testimony.

This case highlights the rule that a broken product alone, absent any expert testimony as to defect and causation, is not enough to win a products liability action when the product is outside the knowledge of the common consumer. The Drug and Medical Device Blog recently provided an extensive review of precedent around the country reaching similar conclusions as the Koger Court that a broken device is not enough.

Texas Supreme Court Reverses $14 Million Verdict Based on Plaintiff’s Expert’s Failure to Test in Products Liability Case

In December, the Supreme Court of Texas demonstrated that it will rigorously examine the basis for expert testimony in products liability cases. A plaintiff’s expert’s failure to test his hypothesis may be fatal to plaintiff’s claims. In Whirlpool Corp. v. Camacho, No. 08-0175, 2009 WL 4728004 (Tex. Dec. 11, 2009), the supreme court reversed a jury award of $14 million to a family who lost their home and their son in a fire that they alleged was caused by a defective dryer.

Santos and Margarita Camacho had purchased the used Whirlpool clothes dryer for use in their mobile home. Several months later, Margarita Camacho smelled smoke and saw fire “coming from the rear part of the dryer and from inside the dryer.” The fire destroyed the trailer home and killed the Camacho’s teenage son who was the only family member unable to escape.

At trial, the Camachos relied on the expert testimony of an electrical engineer who opined that the fire started when clothes in the dryer were ignited by clogged, smoldering lint particles. The Texas Supreme Court, noting that courts are to “rigorously examine” the manner by which an expert applies principles and methodology in reaching his conclusions, disregarded the engineer’s testimony. Citing the Texas version of Daubert, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), the court held that testing of machinery in products liability cases is highly significant in providing support for an expert’s conclusions:

Testing is not always required to support an expert’s opinion, but lack of relevant testing to the extent it was possible, either by the expert or others, is one factor that points toward a determination that an expert opinion is unreliable. . . . If testing of critical aspects of an expert’s testimony has not taken place either by the expert or others in the relevant scientific or expert community, then an explanation of why it has not is an important consideration in evaluating the expert opinions and determining whether they are substantively more than merely the expert’s conclusory, subjective opinion.


Id
. (internal citations omitted).

Regardless of the expert witness’s level of experience in the applicable field, the court here held that the engineer’s failure to test his theories or to provide evidence of others’ testing was an important factor in its concluding that the engineer’s opinions were unreliable.

This Texas Supreme Court opinion shows that evidence of testing of the allegedly faulty machinery is imperative. Otherwise, as here, the expert’s opinions are “subjective, conclusory, and are not entitled to probative weight.”