[00:00:00] Speaker 01:
issue our decision in due course.

[00:00:02] Speaker 01:
The next case up for argument is Hobus versus Howe-Medica-Oceanics Core.

[00:00:36] Speaker 01:
Go ahead, counsel.

[00:00:36] Speaker 04:
Good morning, your honors, counsel.

[00:00:39] Speaker 04:
Bob Miller for the plaintiff and the appellant here.

[00:00:46] Speaker 04:
I would like to reserve the five-minute rebuttal time.

[00:00:50] Speaker 04:
And I would like to then explain in a nutshell what our reason for being here is.

[00:00:59] Speaker 04:
The motion judge in this case disqualified two, well, one and a half of our experts.

[00:01:10] Speaker 04:
The first expert that was disqualified is the treating doctor, the surgeon that did the surgery on

[00:01:18] Speaker 04:
on the back of the plaintiff and installed the device is claimed to be defective.

[00:01:33] Speaker 04:
Obviously, the briefs are pretty well on point and agree that the standards that apply to this issue are the Rule 702 and the Daubert follow-up rulings regarding the use and qualifications of an expert witness.

[00:01:59] Speaker 04:
It seems that when looking at the rule, it's very simple.

[00:02:03] Speaker 04:
The rule starts out by saying if an expert can be used to help understand the evidence or determine or help determine facts, that expert should be allowed.

[00:02:18] Speaker 04:
It also says that

[00:02:20] Speaker 01:
Well, counsel, let me ask you this.

[00:02:21] Speaker 01:
I'm not unsympathetic to the fact that this is Dr. Johnson you're talking about.

[00:02:28] Speaker 01:
With a trained clinician like Dr. Johnson, normally it should be a question of weight rather than admissibility.

[00:02:37] Speaker 01:
But the district court's role in being a gatekeeper has to mean something.

[00:02:41] Speaker 01:
And here, you proffer Dr. Johnson to testify as to the issue of causation.

[00:02:47] Speaker 01:
So I think the district court was right to focus on whether there's a generally accepted methodology.

[00:02:53] Speaker 01:
So what do we do with the fact that Dr. Johnson himself admitted that he really doesn't have a methodology for reaching his conclusions?

[00:03:04] Speaker 01:
What's the district court supposed to do with that?

[00:03:07] Speaker 04:
the definition of what is a methodology.

[00:03:11] Speaker 04:
He has explained what he has done in his practice, what considerations that he used to make his decision.

[00:03:19] Speaker 01:
Well, but he says here, I don't have a methodology.

[00:03:21] Speaker 01:
I just have my instincts as a clinician.

[00:03:24] Speaker 01:
That's not a generally accepted methodology for reaching the causation question.

[00:03:30] Speaker 01:
And he has experience in the operating part of it.

[00:03:35] Speaker 01:
And I think he can rely on his experience with the patient to talk about how those things are conducted.

[00:03:43] Speaker 01:
But to testify as to causation, you've got to show more than that, don't you?

[00:03:50] Speaker 04:
He has to give an opinion as to the causation, which he has done.

[00:03:56] Speaker 01:
Right.

[00:03:57] Speaker 01:
But what's that opinion grounded on?

[00:03:59] Speaker 04:
Well, it is grounded on his personal experience and his treatment of the patient over the years.

[00:04:07] Speaker 04:
The problem.

[00:04:07] Speaker 00:
But he didn't say that when asked how he reached his conclusion, did he?

[00:04:12] Speaker 04:
I think he did.

[00:04:13] Speaker 04:
He did in the latter part say that I've reached this.

[00:04:16] Speaker 00:
Point me to the part of the transcript where you think he provided an explanation.

[00:04:22] Speaker 00:
Where in the record did he provide the explanation of how he reached his conclusion?

[00:04:27] Speaker 04:
I think he summarized what he took into consideration when reaching his conclusion.

[00:04:34] Speaker 04:
He did not specifically identify what x-ray he looked at.

[00:04:44] Speaker 04:
He didn't get into that detail.

[00:04:46] Speaker 04:
He used a summary conclusion saying, I treated this patient over the years, I've looked and based on my

[00:04:56] Speaker 04:
experience as a physician, I've rendered my opinion.

[00:05:01] Speaker 00:
Right.

[00:05:01] Speaker 00:
I understand he gave an opinion.

[00:05:04] Speaker 00:
And the question was, how did he reach it?

[00:05:07] Speaker 00:
And the problem that we're facing is when he was asked how he reached the conclusion, he said, it's just my sense.

[00:05:16] Speaker 00:
It's just my gut.

[00:05:17] Speaker 00:
I don't have a methodology.

[00:05:19] Speaker 00:
So he needed to provide some explanation

[00:05:25] Speaker 00:
I mean, we have case law saying it can't just be a subjective say so.

[00:05:30] Speaker 00:
So reviewing under the abuse of discretion standard here, why was that an abuse of discretion for the judge to say when the physician himself said, I don't have a methodology

[00:05:47] Speaker 04:
Well, two things.

[00:05:48] Speaker 04:
One is that he did reach an opinion based on the treatment of the patient and his experience over the years.

[00:05:58] Speaker 04:
That's what experts do.

[00:06:00] Speaker 04:
They are not going to be able to identify specifically everything they took into consideration.

[00:06:10] Speaker 03:
What was the basis?

[00:06:13] Speaker 03:
Did he reach the conclusion

[00:06:16] Speaker 03:
that it was this cage device that caused his injury?

[00:06:24] Speaker 04:
I'm sorry.

[00:06:24] Speaker 04:
I didn't understand, Your Honor.

[00:06:27] Speaker 03:
I say, did this doctor reach a conclusion that the device involved caused the plaintiff's injury?

[00:06:40] Speaker 04:
Yes, he did.

[00:06:42] Speaker 03:
And what was the basis of that opinion?

[00:06:45] Speaker 03:
Just his treatment?

[00:06:48] Speaker 03:
He said something like, well, I treated him so I know what the cause is.

[00:06:54] Speaker 03:
Something like that?

[00:06:55] Speaker 04:
He did.

[00:06:56] Speaker 03:
There's nothing more than that, is it?

[00:06:59] Speaker 04:
Nothing more specific than saying it is my opinion that because of the failure of the device, that was a substantial cause in his continued problems or as it was.

[00:07:13] Speaker 03:
And coming to that conclusion, was he able to articulate or did he explain why

[00:07:24] Speaker 03:
This patient, this person's other problems, and he has a long history of problems here, were not the cause.

[00:07:35] Speaker 03:
He didn't try to even explain that, did he?

[00:07:39] Speaker 04:
No.

[00:07:40] Speaker 04:
What he did was he explained that because of the failure of the device, that was a substantial factor in causing the plaintiff's current condition.

[00:07:55] Speaker 04:
And he based that on his treatment of the patient over the years and his expertise as a physician, a highly qualified physician.

[00:08:10] Speaker 04:
And even if there is room to attack,

[00:08:15] Speaker 04:
That is supposed to be done through the cross-examination or the impeachment through other means, but not the exclusion as an expert witness.

[00:08:29] Speaker 03:
Well, the district court does have the gatekeeping duty of determining whether or not the expert opinion has a proper

[00:08:44] Speaker 03:
enough of a proper foundation even to be admissible, right?

[00:08:48] Speaker 04:
I would agree with that.

[00:08:50] Speaker 04:
But this is what the judge in this case, she reviewed the facts, she weighed different facts, and then she reached conclusions.

[00:09:00] Speaker 04:
And that is not something that she is supposed to be doing.

[00:09:03] Speaker 00:
Well, in a fair reading of the decision, the decision is initially grounded in the fact that the

[00:09:10] Speaker 00:
Dr. Johnson, when asked what his methodology was, he said, I don't have one.

[00:09:16] Speaker 00:
It's just my gut instinct.

[00:09:21] Speaker 00:
So the way I read the district court's decisions, then they sort of go out of their way to consider your argument that you're raising today, which was just stating that was enough because it was impliedly based on his clinical treatment of the patient.

[00:09:39] Speaker 00:
And it's in the course of responding to that argument that she considers the treatment records.

[00:09:48] Speaker 00:
But the decision is initially grounded in his deposition testimony.

[00:09:56] Speaker 04:
I don't know that the decision that she made was grounded on that response.

[00:10:05] Speaker 04:
What she was looking at were different factors and different points such as the

[00:10:15] Speaker 04:
MRI that was taken in 2017 reported that the device appeared to be in the location it was when it was implanted.

[00:10:28] Speaker 04:
But that has turned out to be incorrect.

[00:10:31] Speaker 04:
And she does note that in a footnote that we now know that what happened was they later did find that this device had failed within six months after it had been implanted.

[00:10:51] Speaker 04:
So she was weighing the different

[00:10:55] Speaker 04:
options of those findings, and then she was making a conclusionary ruling, the ruling that a jury is supposed to make.

[00:11:05] Speaker 04:
And that's where we're saying that that's not proper.

[00:11:10] Speaker 01:
I know you wanted to save some time.

[00:11:11] Speaker 04:
Yes.

[00:11:14] Speaker ?:
Thank you.

[00:11:30] Speaker 02:
May it please the court.

[00:11:32] Speaker 02:
My name is Nick Deutsch.

[00:11:34] Speaker 02:
I'm here on behalf of Appellee Hamedika Ostionics Corp.

[00:11:38] Speaker 02:
The district court did not abuse its discretion in excluding the opinions of Dr. Johnson and Maury Truman.

[00:11:46] Speaker 02:
The district court's conclusion was neither illogical nor implausible nor contrary to the record.

[00:11:53] Speaker 02:
With respect to Dr. Johnson, as the court has noted, Mr. Hobus could not establish that Dr. Johnson employed a reliable methodology when Dr. Johnson himself denied having any methodology at all.

[00:12:07] Speaker 02:
He instead relies on his instincts as a clinician, but his clinical opinion, his medical opinions in this case, were different than his ultimate expert litigation opinions.

[00:12:20] Speaker 02:
And so there needs to be a methodology to explain that change.

[00:12:23] Speaker 02:
Nor did the district court abuse his discretion in finding that Maury Truman did not reliably apply her methodology to the facts of this case.

[00:12:33] Speaker 02:
She set forth a standard and noted a specific test to confirm compliance with that standard, yet testified that she did not know whether the device at issue met that standard and did not conduct the testing that she proposed to determine if her hypothesis was correct.

[00:12:51] Speaker 02:
Without causation or defect testimony, it's undisputed that appellant cannot survive summary judgment, and there is therefore no error.

[00:13:03] Speaker 01:
Your opposing counsel's argument seems to be that yes, even though Dr. Johnson did say that he didn't have a specific methodology other than his clinical experience, as the district court acknowledged, expertise can come from experience, right?

[00:13:22] Speaker 01:
So here you have a doctor who's been a neurosurgeon for, I think, since the 90s.

[00:13:28] Speaker 01:
And this is not the first time that he's used this particular device.

[00:13:33] Speaker 01:
in a patient and he hasn't had a patient who's experienced this failure.

[00:13:40] Speaker 01:
And then he references radiographic evidence to, I guess, shore up his conclusion that it must have been the cage that contributed to the fact that the patient needed a second surgery.

[00:13:56] Speaker 01:
So why isn't that a weight issue where you get to counter with your own expert

[00:14:03] Speaker 01:
And you get to argue, well, that's speculative because he hasn't had another instance of a patient with a cage implanted that's failed.

[00:14:11] Speaker 02:
There's an initial threshold of admissibility that the court must first establish.

[00:14:18] Speaker 02:
And here, the court can consider expertise.

[00:14:24] Speaker 02:
And as a clinician, does he have that expertise?

[00:14:26] Speaker 02:
But as the district court noted, Dr. Johnson did not have any experience at all with a cage collapse.

[00:14:33] Speaker 02:
And he's been offered in this case to offer opinion testimony about the cause of that cage collapse.

[00:14:40] Speaker 02:
and the effect of that cage collapse, which he has no experience with at all.

[00:14:47] Speaker 02:
Further, the methodology of how he gets there is the critical factor that the court is supposed to be considering.

[00:14:56] Speaker 02:
And when he says he doesn't have a methodology, the inquiry stops there.

[00:15:01] Speaker 02:
We can't examine his methodology when he denies having a methodology at all.

[00:15:06] Speaker 01:
Did you have a counter expert?

[00:15:08] Speaker 01:
And if so, what was the conclusion on the cause of this failure or why he needed to have another surgery?

[00:15:15] Speaker 02:
So there is another expert in this case.

[00:15:18] Speaker 02:
We had an expert, and that expert opined that some of the original conditions were the cause of the continuing pain, that there's been no change in the pain and that that has just continued same course.

[00:15:30] Speaker 02:
The surgery was just not effective.

[00:15:33] Speaker 02:
In fact, this was actually Dr. Johnson's opinion when he was treating Mr. Hobus.

[00:15:39] Speaker 02:
He said, I suspect that Hobus's pain issues are much larger than what we dealt with with his back surgery.

[00:15:45] Speaker 02:
He said that there's no cord compression or nerve impingement.

[00:15:49] Speaker 02:
He says, I think this is just a poor outcome from surgery.

[00:15:53] Speaker 02:
Even after it was pointed out that the cage had collapsed, he said, I strongly suggest that this is not the source of Mr. Hobus's ongoing pain.

[00:16:02] Speaker 02:
He described it as being of questionable significance.

[00:16:06] Speaker 02:
He said he's unsure to what extent it accounted for Mr. Hobus's ongoing pain because such a finding would not automatically be expected to cause symptoms.

[00:16:17] Speaker 00:
I understand his deposition test would be after, you know, further treatment.

[00:16:23] Speaker 00:
He changed his view on that or that part of his questioning was how he counsels the patient.

[00:16:31] Speaker 00:
So taking that, you know, that it wasn't necessarily undermining his own conclusion, but either that it reflected a different context and perhaps different conclusion at a different point in time in the course of treatment.

[00:16:45] Speaker 00:
I think there's, I don't think it's necessary.

[00:16:48] Speaker 00:
I mean, I think you could have cross-examined the witness and tried to impeach me on those grounds, but it doesn't, I don't think that evidence in and of itself means that his conclusion was

[00:17:01] Speaker 00:
I think that would be for a jury to decide what the significance of his earlier statements were.

[00:17:07] Speaker 00:
But that's where I think there's, in my opinion, the closest issue was that that's arguably impeachment evidence that would have been dealt with on cross-examination versus going to his qualifications as an expert.

[00:17:22] Speaker 02:
The change in his opinion may not in and of itself disqualify him as an expert, but it needs to be explained.

[00:17:31] Speaker 00:
Do you have case law on that, or is that just an argument under the circumstances of this case?

[00:17:38] Speaker 02:
Under Kumo itself, we're trying to establish that the expert employees in the courtroom, the same level of intellectual rigor that characterizes his practice outside of the courtroom.

[00:17:53] Speaker 02:
And so here, when you've got that intellectual rigor actually tested outside of the courtroom, this is what he did outside of the courtroom.

[00:18:01] Speaker 02:
And now we're offering a different opinion inside of the courtroom.

[00:18:04] Speaker 02:
We need an explanation of the methodology as to how he got there.

[00:18:08] Speaker 02:
And that's what's lacking in this case.

[00:18:10] Speaker 02:
He was asked about this specifically and said, I don't have a methodology.

[00:18:16] Speaker 02:
There's no methodology, sir.

[00:18:18] Speaker 02:
I'm sorry.

[00:18:19] Speaker 02:
Repeatedly denied having any methodology at all.

[00:18:23] Speaker 02:
That's the causation piece.

[00:18:25] Speaker 02:
On the defect piece, Mr. Hobus

[00:18:31] Speaker 02:
propounded the testimony of Mari Truman.

[00:18:36] Speaker 02:
Mari Truman said that there should be a 2000 Newton standard for testing this device, but she said she doesn't know whether the device could actually pass that standard.

[00:18:49] Speaker 02:
She doesn't know what forces were actually placed on the device implanted in Mr. Hobbes as to whether that standard would actually have worked in Mr. Hobbes' case.

[00:19:00] Speaker 02:
She doesn't know whether any expandable cage on the market withstands this 2,000 newton standard that she set in place.

[00:19:08] Speaker 02:
And she does not know if it's feasible to design an expandable cage that withstands 2,000 newtons of force.

[00:19:15] Speaker 02:
So she set a standard, she identified testing for that standard, but is not able to tell us whether the device at issue in this case meets or exceeds that threshold standard, nor did she conduct the testing that she identifies would need to be done to confirm compliance with that standard.

[00:19:37] Speaker 02:
She also offers a warning defect opinion.

[00:19:42] Speaker 02:
She says, first, there's no specific notice of the risk of collapse.

[00:19:48] Speaker 02:
She concedes, though, that the risk of collapse is obvious.

[00:19:52] Speaker 02:
This is also consistent with Dr. Johnson's opinions, that he was aware of the risk of collapse.

[00:19:58] Speaker 02:
And in going through the instructions for use, the risk of collapse actually was warned about.

[00:20:04] Speaker 02:
And so Ms.

[00:20:05] Speaker 02:
Truman said, actually, there should be specific weight and activity level limitations in the instructions.

[00:20:14] Speaker 02:
But she said, I don't know what those limitations should actually be.

[00:20:18] Speaker 02:
We would need more testing to determine what weight and activity limitations would be appropriate.

[00:20:24] Speaker 02:
The instructions already have a general instruction that the patient's weight and activity levels need to be considered.

[00:20:31] Speaker 02:
There's just not a specific amount or number in there.

[00:20:35] Speaker 02:
And Ms.

[00:20:35] Speaker 02:
Truman could not propose a specific amount or number either.

[00:20:40] Speaker 02:
Now, because we're under Rule 702, I think it's important to note that the district court correctly applied the existing standards of Rule 702, this is Federal Rule of Evidence 702, which have always required that expert testimony be relevant and reliable.

[00:20:59] Speaker 02:
But the district court's approach is further bolstered by the recent amendments to Rule 702.

[00:21:05] Speaker 02:
They were approved by the Supreme Court and promulgated to go into effect December 1st of 2023, so just about a year ago.

[00:21:15] Speaker 02:
The rule addressed two frequent errors in jurisprudence across the country that the advisory committee had noted.

[00:21:24] Speaker 02:
First, the committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in 702B and D. This is the adequate facts and then applying the methodology to those facts.

[00:21:39] Speaker 02:
that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology are questions of weight and not admissibility, and more broadly, that expert testimony is presumed to be admissible.

[00:21:53] Speaker 02:
The committee said these statements misstate Rule 702 because its admissibility requirements must be established to a court by a preponderance of the evidence.

[00:22:04] Speaker 02:
So the Rules Committee promulgated this new rule, took public comment, took comment from the bar, from the bench, got more than 500 comments, and almost all of them focused on the preponderance of the evidence language that it was adding to the rule.

[00:22:20] Speaker 02:
Some people said preponderance of the evidence suggests that the evidence must be admissible.

[00:22:26] Speaker 02:
Others said that this changes the role of the judge to that of the jury as the fact finder.

[00:22:35] Speaker 02:
The committee took those into consideration and said, we're not concerned with the admissible evidence portion, because the rule is clear.

[00:22:44] Speaker 02:
The court can consider inadmissible evidence.

[00:22:47] Speaker 02:
But we're going to change it.

[00:22:48] Speaker 02:
Instead of referring to preponderance of the evidence, we're going to say, more likely than not, we'll take the word evidence out.

[00:22:55] Speaker 02:
But secondly, and more importantly for our purposes, the committee was not concerned about the shift to the jury function.

[00:23:05] Speaker 02:
And it said for the simple reason that when it comes to making preliminary determinations about admissibility, the judge is and always has been a fact finder.

[00:23:17] Speaker 02:
The Rules Committee also clarified that it's the court, not the jury, that must decide whether it's more likely than not that the reliability requirements of the rule have been met.

[00:23:28] Speaker 02:
And so the committee notes to the rule itself say that it's been amended in two respects.

[00:23:36] Speaker 02:
One, to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court

[00:23:43] Speaker 02:
that it's more likely than not that the proffer testimony meets the admissibility requirements of the rule, and goes on to say, this is in the notes of the rule itself, but many courts have held that the critical questions of the sufficiency of the expert's basis, the applicability of the expert's methodology, are questions of weight and not admissibility.

[00:24:05] Speaker 02:
These rulings are an incorrect application of rule 702 and 104A.

[00:24:11] Speaker 02:
And so now we have the Supreme Court, through its rulemaking authority, saying the district courts need to consider the factual basis for the expert's opinion and to confirm that the methodology is properly applied to the facts of the case, that the court itself needs to make these findings and needs to do so by a preponderance of the evidence.

[00:24:36] Speaker 02:
Also, emphasize that judicial gatekeeping is essential because jurors are unable, because they don't have the specialized knowledge, to evaluate the reliability of scientific methods and other underlying expert opinions.

[00:24:54] Speaker 02:
But also, jurors may lack the specialized knowledge to determine what conclusions of an expert go beyond what the expert's basis and methodology may reliably support.

[00:25:06] Speaker 02:
So the rule change emphasizes that the application of the methodology to the facts is really where attention needs to be given.

[00:25:16] Speaker 02:
Judge Schroeder, the chair of the advisory committee subcommittee on Rule 702 said, the elements of Rule 702, not the case law, are the starting point for the requirements of admissibility.

[00:25:30] Speaker 02:
And so this rule had been promulgated, hadn't gone into effect, but had been promulgated.

[00:25:36] Speaker 02:
It's important to note the rule says nothing in the amendment imposes any new or specific procedures.

[00:25:43] Speaker 02:
The amendment is simply intended to clarify that Rule 104A's requirement applies to expert opinions under Rule 702.

[00:25:51] Speaker 02:
So even under the case law where the district court's role is merely to screen junk science and nonsense opinions, the court did not abuse its discretion in this case.

[00:26:04] Speaker 02:
But the amendment to the rule confirms that Federal of Evidence 702 does require more.

[00:26:12] Speaker 02:
And certainly under that standard, the court has not abused its discretion.

[00:26:16] Speaker 02:
Thank you.

[00:26:16] Speaker 01:
Thank you, counsel.

[00:26:17] Speaker 02:
Just a minute.

[00:26:19] Speaker 03:
Could I ask a question?

[00:26:24] Speaker 03:
Okay, let me ask, I just want to get some notes on the structure of your appeal here.

[00:26:33] Speaker 03:
One, if we agree with you that the district court did not abuse its discretion in excluding Dr. Johnson's opinion, then is that sufficient to

[00:26:53] Speaker 03:
to uphold your summary judgment, isn't it?

[00:26:58] Speaker 02:
That's correct.

[00:26:59] Speaker 02:
There's no dispute on that issue.

[00:27:01] Speaker 03:
All right.

[00:27:01] Speaker 03:
Now, so then we don't need to consider this business about the partial exclusion of, what's her name, Mary Marie Truman's opinion, do we, in that circumstance?

[00:27:17] Speaker 02:
The exclusion of either expert is sufficient to uphold summary judgment.

[00:27:21] Speaker 02:
That's correct.

[00:27:22] Speaker 03:
All right, so then we would have to consider the ruling on exclusion of the Truman opinion only if we disagree with the district court that it should have excluded the Johnson opinion.

[00:27:42] Speaker 03:
Is that right?

[00:27:43] Speaker 03:
No, we don't have to rule on both of those, do we?

[00:27:48] Speaker 03:
Either one's sufficient.

[00:27:49] Speaker 03:
That's correct.

[00:27:51] Speaker 03:
Is that right?

[00:27:51] Speaker 02:
I mean, to uphold your summary judgment.

[00:27:53] Speaker 02:
Either one is sufficient to uphold summary judgment.

[00:27:55] Speaker 02:
That's correct.

[00:27:56] Speaker 03:
Right.

[00:27:57] Speaker 03:
Because without those, you know, the plaintiff can't make his case, right?

[00:28:03] Speaker 02:
Right.

[00:28:03] Speaker 02:
As to causation, Oregon law requires expert testimony where there's a complex medical question.

[00:28:10] Speaker 02:
And as to defect, Oregon has a statute where there's a rebuttable presumption against defect.

[00:28:18] Speaker 02:
So under both causation and defect, expert testimony would be required.

[00:28:23] Speaker 02:
The exclusion of either expert would be sufficient to uphold summary judgment.

[00:28:27] Speaker 03:
All right.

[00:28:28] Speaker 03:
Thank you.

[00:28:29] Speaker 02:
Thank you.

[00:28:30] Speaker 01:
Thank you, counsel.

[00:28:30] Speaker 02:
Thank you.

[00:28:39] Speaker 04:
Just a few points.

[00:28:43] Speaker 04:
First of all, counsel brought up the difference between a clinical expert and an expert for review of the file and testimony at trial.

[00:28:55] Speaker 04:
Dr. Johnson fell into both of those categories.

[00:29:00] Speaker 04:
So when Dr. Johnson describes his opinion, he said as a medical expert, this is my opinion once I have reviewed the whole case and I have looked at all the evidence in the record.

[00:29:17] Speaker 04:
And he gave that as his opinion.

[00:29:21] Speaker 04:
And he described and defined what his methodology was, although he didn't understand that you have to list some type of

[00:29:35] Speaker 04:
function to be included as the methodology that he used.

[00:29:41] Speaker 04:
He said that he went about, he described that over, he used his experience over the years, he used the entire record, he considered all the factors that are involved.

[00:29:55] Speaker 04:
That is all methodology, although he didn't describe that as methodology.

[00:30:02] Speaker 04:
The other argument that this is the first collapse device that Dr. Johnson has dealt with would disqualify him from rendering these opinions certainly is not, that is not a logical

[00:30:21] Speaker 04:
conclusion for this court to draw because then you would never could never bring a case if it was a case of first impression on a product that just because it's the first time they've been sued does not mean you cannot bring a lawsuit against them if the evidence is there.

[00:30:45] Speaker 04:
The explanation of

[00:30:49] Speaker 04:
The doctor's opinion was he explained and explained through the procedure of the case why there was difference in seeing that at the time there was MRIs done in or scans done in

[00:31:16] Speaker 04:
after this first surgery that they were still having difficulty trying to figure out what went on.

[00:31:24] Speaker 04:
And that is because they didn't know that the cage had collapsed at that point.

[00:31:30] Speaker 04:
The cage moved very slightly, but it was enough to collapse and migrate from the position.

[00:31:40] Speaker 04:
But it wasn't large enough that the

[00:31:44] Speaker 04:
the radiologists that are reading the x-rays after the surgery were able to identify by just looking at the surgery.

[00:31:54] Speaker 04:
That's why there were a number of reports that say it appears that the device is still in place, but when in fact it had not.

[00:32:07] Speaker 04:
And so until they went in in December, the month before the surgery,

[00:32:13] Speaker 04:
at the end of 18, and did thorough x-rays again, were they really convinced at that point that the device had collapsed?

[00:32:25] Speaker 04:
So there's a logical explanation for why there are many of those reports in the record.

[00:32:30] Speaker 00:
Council, just because you're running out of time, can you address your other expert witness?

[00:32:36] Speaker 00:
Yes.

[00:32:38] Speaker 00:
Do you agree if either was excluded properly, summary judgment should be affirmed?

[00:32:42] Speaker 04:
I would not.

[00:32:44] Speaker 04:
I think the case can still be brought even if part of Dr. or Mari Truman's summary judgment is upheld.

[00:32:57] Speaker 04:
The case can still be brought in the remainder of her testimony, which the judge qualified her and agreed that she was qualified to testify.

[00:33:06] Speaker 01:
Did you have other evidence of causation besides Dr. Johnson?

[00:33:10] Speaker 04:
No, Dr. Johnson, we would not.

[00:33:12] Speaker 01:
This is the only witness on causation.

[00:33:14] Speaker 04:
That's correct.

[00:33:15] Speaker 04:
And I would agree that if the court finds that Dr. Johnson cannot testify, then that there would not be, correct, there would not be reason to look at Truman's issues.

[00:33:29] Speaker 04:
I don't think we should be considering the rules that were not in effect back when this case began.

[00:33:35] Speaker 04:
I think when we're looking at this case, remember that we've never had a chance to even

[00:33:46] Speaker 04:
qualify or have our Dr. Johnson testify under direct examination and go through the process of qualifying him as an expert and then explaining the complete situation.

[00:34:02] Speaker 04:
And that's what is critical.

[00:34:05] Speaker 01:
Thank you, counsel.

[00:34:05] Speaker 01:
Thank you.

[00:34:06] Speaker 01:
Judge Tashima, did you have any additional questions?

[00:34:09] Speaker 03:
No, thank you.

[00:34:10] Speaker 01:
All right.

[00:34:11] Speaker 01:
Thank you both for your argument today.

[00:34:12] Speaker 01:
The matter is submitted.