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Fertik v. Stevenson

United States District Court, D. Massachusetts

August 4, 2016

WILLIAM FERTIK, individually and as personal representative and successor of the ESTATE of GRETA FERTIK, Plaintiff,
v.
WILLIAM STEVENSON, M.D.; MELANIE MAYTIN, M.D.; ABBOTT VASCULAR, INC., Defendants.

          William Fertik, Plaintiff, represented by Alex H. MacDonald, MacDonald Law Group LLC, Michael D. Lurie, MacDonald Law Group LLC & Rebecca A.G. Robertson, MacDonald Law Group LLC.

          William Stevenson, Defendant, represented by Edward F. Mahoney, Martin, Magnuson, McCarthy & Kenney & Sarah Ann Greenhalgh, Martin, Magnuson, McCarthy and Kenney.

          Melanie E Maytin, Defendant, represented by Edward F. Mahoney, Martin, Magnuson, McCarthy & Kenney & Sarah Ann Greenhalgh, Martin, Magnuson, McCarthy and Kenney.

          Abott Vascular, Inc., Defendant, represented by Brett T. Moroney, Gordon & Rees LLP, pro hac vice, Richard M. Zielinski, Goulston & Storrs, Brian J. Mooney, Gordon & Rees LLP, pro hac vice, Bryce A. Cooper, Winston & Strawn LLP,, pro hac vice, Edward R. Fitzgerald, Gordon & Rees LLP, pro hac vice, Elizabeth K. Levine, Goulston & Storrs, PC & Stephen D'Amore, Winston & Strawn LLP, pro hac vice.

          Abbott Laboratories, Inc., Defendant, represented by Brett T. Moroney, Gordon & Rees LLP, pro hac vice, Richard M. Zielinski, Goulston & Storrs, Brian J. Mooney, Gordon & Rees LLP, pro hac vice, Bryce A. Cooper, Winston & Strawn LLP,, pro hac vice, Edward R. Fitzgerald, Gordon & Rees LLP, pro hac vice, Elizabeth K. Levine, Goulston & Storrs, PC & Stephen D'Amore, Winston & Strawn LLP, pro hac vice.

          Brigham & Women's Hospital, Objector, represented by James P. Donohue, Jr., Diedrich & Donohue, LLP.

          MEMORANDUM AND ORDER

          PATTI B. SARIS, Chief District Judge.

         INTRODUCTION

         William and Greta Fertik[1] filed this action against two physicians and the manufacturer of a surgical guide wire, Abbott Vascular, Inc. (Abbott), after the guide wire broke and was left inside William Fertik's heart during cardiac surgery. Abbott moved for summary judgment and to exclude the opinion testimony of the plaintiff's expert, Dr. Dana Medlin, under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In an earlier order, this Court denied Abbott's motion for summary judgment, ruling that the plaintiff's case could proceed to trial on the doctrine of res ipsa loquitur. Fertik v. Stevenson, No. 12-cv-10795-PBS, 2016 WL 2851315, at *1 (D. Mass. May 13, 2016). The Court declined to rule on Abbott's Daubert motion at that time, allowing the parties to supplement the record with any new evidence they discovered about the length of the wire remnant left in the plaintiff's chest. Id. at *6.[2] The Court assumes familiarity with that opinion, which sets forth the factual record of this case. The Court held an evidentiary hearing at which the plaintiff's expert, Dana Medlin Ph.D., P.E., FASM, testified. After hearing, the defendant's Daubert motion (Docket No. 179) is ALLOWED in part.

         DISCUSSION

         Abbott argues that Dr. Medlin's theory that the guide wire separated at the hypotube junction is not supported by the measurement of the wire remnant, and that, because he could not test the actual wire remnant, he has no reliable scientific basis for claiming that it was more likely than not that the guide wire broke as a result of a manufacturing defect.

         Admissibility of expert testimony is guided by Federal Rule of Evidence 702, which provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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