James House v. Depuy Synthes Sales, Inc., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12897
Non-Argument Calendar
____________________
JAMES HOUSE,
Plaintiff-Appellant,
versus
DEPUY SYNTHES SALES, INC.,
A Foreign Corporation,
DEPUY SYNTHES PRODUCTS, INC.,
A Foreign Corporation,
SYNTHES USA PRODUCTS, LLC,
A Foreign Corporation,
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2 Opinion of the Court 21-12897
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cv-00329-JSM-PRL
____________________
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
After plaintiff James House allegedly was injured by a de-
fective medical device, he sued the entities that designed, manu-
factured, and sold the device. The district court, applying the
principles of
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), excluded testimony from House’s expert and
then granted summary judgment to defendants DePuy Synthes
Sales, Inc.; DePuy Synthes Products, Inc.; and Synthes USA Prod-
ucts, LLC (collectively, “DePuy”). After careful consideration, we
affirm.
I.
House fell from a ladder, breaking bones in both legs. He
needed surgery to repair the broken bones. The surgery involved
the use of femoral nails to repair both femurs. After surgery, his
left femur failed to heal properly. In a second operation, a surgeon
removed the nail from House’s left femur and replaced it with a
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21-12897 Opinion of the Court 3
device known as a Variable Angle LCP Curved Condylar Plate,
which DePuy designed, manufactured, and sold. The plate was
supposed to hold the broken portions of the femur together so
that the bone could heal.
About three months after the second surgery, House re-
turned to the hospital complaining of pain. An examination re-
vealed that his broken bone had not healed and the plate had frac-
tured. He needed an additional surgery to remove the plate. After
further complications, his left leg was amputated above the knee.
House sued DePuy, bringing strict liability claims for de-
sign defect, failure to warn, and manufacturing defect, as well as a
negligence claim, all under Florida law. He alleged that the plate
was defectively designed because it had a “propensity to break
and/or fracture.” Doc. 16 at ¶ 23.1 He also alleged that DePuy
had failed to adequately warn of the “true risks” of the plate based
on its “increased risk of failure.”
Id. at ¶¶ 34, 38. And he alleged
that the plate implanted in his leg was defectively manufactured
because it “deviated in a material way from [DePuy’s] manufac-
turing performance standards and/or it differed from otherwise
identical products manufactured to the same design formula.”
Id.
at ¶ 45. Finally, he alleged that DePuy was negligent in the design,
manufacturing, testing, inspecting, distribution, and sale of the
plate.
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 21-12897
During discovery, House identified Richard Waltein as his
expert witness. Waltein had earned a bachelor’s degree in me-
chanical engineering and master’s degrees in mechanical engi-
neering and metallurgy. He also completed advanced graduate
studies in the area of failure analysis. He spent several decades
working for a company in the aerospace industry, performing
failure analyses to determine what caused systems or parts in air-
craft to fail. After retiring from this job, Waltein spent a year
working as a consultant for a company developing a spine-related
medical device. When a prototype broke during testing, his role
was to perform a failure analysis to determine what caused the
product to break. He also taught mechanical engineering classes
as an adjunct lecturer at a university. He does not consider him-
self an expert in orthopedics; orthopedic implants; biomedical en-
gineering; biomaterials; or the design, manufacture, or implant of
medical devices.
In this case, Waltein inspected the plate and then opined on
what caused it to break. He testified that the plate probably frac-
tured as a result of fatigue failure. Because the plate fractured only
84 days after being implanted in House’s leg, Waltein concluded
that it was inadequately designed for its intended use.
DePuy filed a motion to exclude Waltein as an expert wit-
ness. It argued that he was not qualified to testify as an expert re-
garding the design or manufacture of the plate or appropriate
warnings for its use and that his opinions were not the result of a
reliable methodology.
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21-12897 Opinion of the Court 5
DePuy also filed a motion for summary judgment. It ar-
gued that under Florida law, to establish that a product had a de-
sign defect, manufacturing defect, or inadequate warnings, a
plaintiff has to introduce expert testimony. Because House’s only
expert was Waltein and his testimony should be excluded, DePuy
maintained, it was entitled to summary judgment.
The district court granted DuPuy’s motions to exclude
Waltein’s expert testimony and for summary judgment. The
court excluded Waltein’s testimony on two grounds: he was not
qualified to testify as an expert opining on whether the plate was
defective, and his methodology was unreliable. Without any ex-
pert testimony to support his products liability claims, the district
court concluded, House’s claims failed as a matter of law.
This is House’s appeal.
II.
“We review
de novo the district court’s grant of summary
judgment, construing the facts and drawing all reasonable infer-
ences in favor of the nonmoving party.”
Smelter v. S. Home Care
Servs., Inc., 904 F.3d 1276, 1284 (11th Cir. 2018). Summary judg-
ment is appropriate if the record gives rise to “no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of materi-
al fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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6 Opinion of the Court 21-12897
We review “a district court’s decision to exclude an ex-
pert’s testimony under an abuse of discretion standard.”
Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005). “Because
the task of evaluating the reliability of expert testimony is unique-
ly entrusted to the district court,” we give district courts “consid-
erable leeway” in executing this duty.
See id. (internal quotation
marks omitted).
When the order being appealed rests on two or more inde-
pendent, alternative grounds, the appellant must raise and chal-
lenge all of the grounds to succeed on appeal.
See Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). If an
appellant fails to challenge on appeal one of the alternative
grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge, and the judgment is
due to be affirmed.
See id.
III.
House contends that the district court abused its discretion
in excluding Waltein’s testimony and that with Waltein’s testi-
mony his claims would have survived summary judgment. He
argues that the district court abused its discretion in determining
that Waltein was not qualified to testify as an expert witness. But
he does not address the district court’s alternative ground for ex-
cluding the testimony: that Waltein’s methodology was unrelia-
ble. Because House has failed to challenge each independent
ground on which the district court based its decision to exclude
Waltein’s expert testimony, he has abandoned any challenge to
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21-12897 Opinion of the Court 7
the testimony’s exclusion. The district court’s decision is therefore
affirmed.
See Sapuppo, 739 F.3d at 680
.
House bases his argument that the district court improper-
ly granted summary judgment entirely on his argument that the
court abused its discretion in excluding Waltein’s testimony.
Thus, having affirmed the district court’s order excluding Wal-
tein’s testimony, we must also affirm its grant of summary judg-
ment.
See Rink, 400 F.3d at 1291–97 (affirming grant of summary
judgment when plaintiffs were required to introduce expert tes-
timony to establish causation under state law for their tort claims
and district court did not abuse its discretion in excluding their
experts).
AFFIRMED.
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