It is a little surprising, but there continue to be cases in which plaintiffs allege a product was defective, litigate for a long time, but do not produce an expert opinion to that effect. If the product is at all complex, a jury should not be permitted to guess that the product was defective just because someone used it and now alleges an injury from that use.
In Marshall v. Zimmer, Inc., No. CV 18-3363, 2020 WL 5408209, at *1 (E.D. Pa. Sept. 9, 2020), plaintiffs alleged that the Defendants were responsible for complications suffered after a knee replacement surgery. Plaintiffs asserted that the knee replacement system manufactured and sold by Zimmer was implanted in Mr. Marshall’s left leg, and was defective, and thus caused Mr. Marshall’s injuries. Defendant moved for summary judgement when, after many extensions, plaintiffs were unable to find an expert to support their claims.
The court granted the motion, noting the standard rule that “expert testimony is needed where the subject is beyond the purview of the ordinary lay jury’s experience and knowledge.” It is worth noting that all of plaintiffs’ remaining claims, alleging defects in design, manufacturing, and failure to warn, and also asserting breach of implied warranties, failed for the absence of an expert opinion. And also the derivative loss of consortium claim on behalf of Mrs. Marshall.