Ralston v. Smith & Nephew Richards, Inc. (275 F.3d 965, 2001)

GARTH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f). The case is therefore submitted without oral argument.

Plaintiff-appellant Karen Ralston appeals the district court’s grant of summary judgment in favor of defendant-appellee Smith & Nephew, Inc. For the reasons discussed below, we will affirm the judgment.

I.

Ralston was diagnosed with cancer of her left femur in 1986. That year, she underwent a series of operations and procedures to treat her cancer, including six weeks of intensive preoperative radiation therapy, removal of bone tissue, and additional postoperative radiation. These treatments significantly reduced the strength of her left leg bone.

In April 1996, Ralston tripped and fractured portions of her lower left femur extending into the knee area. Ralston was treated by Dr. William Bohn, who implanted a multihole nail (the “MultiHole Nail”) manufactured by Smith & Nephew in the broken femur. The purpose of the nail was to hold fractured bone fragments in the proper position to permit healing of the bone. According to Dr. Bohn’s deposition testimony (discussed infra, see Section II.B.l), one advantage of the MultiHole Nail was its ability to deal with multiple fractures, by binding several pieces of fractured bone in place for healing.

In October 1996, six and a half months after having the MultiHole Nail implanted, Ralston twisted her leg while at work, causing pain and weakness in her left leg. Upon examination, it was discovered that the MultiHole Nail had broken, and that another fracture was found in her left femur, although it was not the same fracture as had occurred before. Dr. Bohn performed a bone graft and removed the Mul-tiHole Nail, replacing it with a longer titanium intramedullary nail that extended up Ralston’s hip.

Ralston continued to have problems with her left leg, and in March 1998, Dr. Bohn performed another bone graft to relieve her continuing pain. He also referred Ralston to Dr. Howard Rosenthal, a physician specializing in oncologic orthopedics. Upon examination, he concluded that the original fractures of April 1996 had not yet healed, but that the failure of the MultiHole Nail did not prevent that original fracture from healing. In June 1999, Dr. Kimberly Templeton, an ortho-paedic surgeon and associate professor at the University of Kansas Medical School, performed a total knee replacement by removing the titanium nail and the fractured femur, and implanting a piece of metal with a hinge in their place.

In April 1998, Ralston filed suit against Smith & Nephew alleging (i) design defect, (ii) manufacturing defect, (iii) various FDA violations, and (iv) negligence, including a failure to warn. Moreover, she claimed that Dr. Bohn, as her treating physician, was not properly warned that another kind of nail manufactured by Smith & Nephew — a five hole nail (the “Five Hole Nail”) — was more durable than the Multi-Hole Nail, and may have been more appropriately used.

In June and July 1999, Smith & Nephew filed its motion for summary judgment as well as a motion to strike Ralston’s only expert at that time, Dr. Christopher Ramsay. In a hearing before the district court on September 27, 2000, Ralston’s counsel agreed to Smith & Nephew’s motion to strike Dr. Ramsay, substituting Dr. Tem-pleton as their new expert. Moreover, counsel advised the court that Ralston would abandon her product defect and FDA claims, and pursue only the failure to warn cause of action. Consequently, the district court granted Ralston additional time to file a supplemental opposition to Smith & Nephew’s summary judgment motion based on the “failure to warn” theory.

On October 6, 2000, Ralston filed her Supplemental Opposition, featuring excerpts from the September 1999 and October 1999 depositions of Dr. Templeton, as well as a new affidavit from Dr. Bohn dated October 3, 2000 (the “October 3rd Declaration”). This latter affidavit contradicted certain statements Dr. Bohn had made in an earlier deposition conducted in March 1999. In response, Smith & Nephew procured a second affidavit by Dr. Bohn dated October 11, 2000 (the “October 11th Declaration”), wherein he modified certain statements he made in the October 3rd Declaration.

A final hearing was held before the district court on November 7, 2000, after which the court ruled in favor of Smith & Nephew, finding no material issue of fact as to the inadequacy of the warnings provided by Smith & Nephew. In so ruling, the district court excluded Dr. Templeton’s testimony under Fed.R.Evid. 702 on the grounds that she was unqualified to render an opinion on the subject-matter of Ralston’s theory, and because her opinions were not reliable under the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Moreover, the district court disregarded the October 3rd and October 11th Declarations of Dr. Bohn on the ground that they contradicted his prior deposition on March 19,1999, and instead relied only on Dr. Bohn’s deposition testimony.

II.

In this appeal, Ralston first challenges the district court’s exclusion of Dr. Templeton’s expert testimony and its disregard of Dr. Bohn’s October 3rd and October 11th Declarations. The district court’s decision to admit or exclude evidence generally, including expert testimony, is typically reviewed under an abuse of discretion standard. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163-64 (10th Cir.2000); National Assoc. Of Professional Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1152 (10th Cir.2000). A district court abuses its discretion “when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir.1998) (internal quotations omitted). “A trial court’s decision will not be disturbed unless [this Court has] a definite and firm conviction that the [trial] court has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164) (10th Cir.) (citation omitted), cert. denied, 525 U.S. 1054, 119 S.Ct. 617, 142 L.Ed.2d 556 (1998).

A.

Fed.R.Evid. 702 imposes upon the trial judge an important “gate-keeping” function with regard to the admissibility of expert opinions. See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In order to determine whether Dr. Templeton’s expert opinion is admissible, the district court had to undergo a two-step analysis. First, the court had to determine whether Dr. Templeton, the expert, was qualified by “knowledge, skill, experience, training, or education” to render an opinion. See Fed.R.Evid. 702. Second, if Dr. Templeton was so qualified, the court had to determine whether her opinions were “reliable” under the principles set forth under Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Because we find that Dr. Temple-ton’s testimony was properly excluded on the ground that she was unqualified, we have no need to address the reliability of her conclusions under Daubert.

Dr. Templeton herself admits that she is not an expert on intramedullary nailing. Throughout her deposition testimony, she conceded several times that she knew little — if anything — about the subject. She admits that she has done no research with intramedullary nailing and that she was asked to testify in the Ralston litigation in order to opine on the subject of bone healing, not to discuss the adequacy of warnings.

I do absolutely no research with intram-edullary nailing. My expertise is in oncology and in this instance was to bring in expertise as far as the treatment or the healing and problems with healing of a radiated bone.

Deposition Transcript of Dr. Templeton at *150. She has never been published in any matter, and the two articles that were accepted for publication had nothing to do with intramedullary nailing. Indeed, Dr. Templeton admits to never having researched the MultiHole Nail at issue in this appeal. See id. at 143 (“I’ve not done any research specifically looking at this nail.”).

Moreover, on the issue of the adequacy of warnings generally, Dr. Templeton testified that she had never drafted, nor has ever been asked to draft, a surgical technique or warning of a product of any kind. See id. at *62 (Q: “Have you drafted a warning that you think is appropriate for this particular device in this case?” A: “No....” Q: “Have you ever been asked to draft a surgical technique or warnings for a product of any kind?” A: “No.”). She also testified that she had never seen a warning for any device that was similar to the form in the warning provided by Smith & Nephew in its “Warnings and Precautions Page,” noting instead that the only warnings she had ever observed were “very brief warning[s]” that “they’ll put down at the bottom of the page.” Id. at *63.

The only reason advanced by Ralston that Dr. Templeton is qualified to testify as an expert is because she is a board certified orthopaedic surgeon and is therefore entitled to rely upon general ortho-paedic and surgical principles and concepts. Ralston cites Compton v. Subaru of America, Inc., 82 F.3d 1513, 1519-20 (10th Cir.1996) in support of this proposition.

Ralston’s reliance upon Compton is misplaced. That case holds only that “[a]s long as an expert stays ‘within the reasonable confines of his subject area,’ our case law establishes ‘a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight.’ ” Id. at 1520 (quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir.1991)). The dispositive question becomes, therefore, whether the issue of the adequacy of the warning with regard to Smith & Nephew’s intramedullary nail is “within the reasonable confines” of Dr. Temple-ton’s subject area. As demonstrated by Dr. Templeton’s own admissions discussed above, it is evident that the district court did not abuse its discretion in finding that intramedullary nailing was not within the reasonable confines of her subject area.

Moreover, Compton’s citation to Wheeler v. John Deere for the precept that reliance upon general principles and concepts is sufficient for admissibility of expert testimony is itself questionable as Wheeler is a pre-Daubert opinion. While this Court has not had the occasion to discuss that particular issue, the district courts in this Circuit have held after Wheeler and Compton, and we agree, that merely possessing a medical degree is not sufficient to permit a physician to testify concerning any medical-related issue. See Alexander v. Smith & Nephew, 98 F.Supp.2d 1310, 1315 (N.D.Ok.2000) (“[t]he simple possession of a medical degree is insufficient to qualify a physician to testify as to the advantage of a spinal fixation device, the medical causation of spine-related ailments, or the mechanical functioning of an orthopedic implantation device,” and see n. 2, supra)-, see also United States Surgical Corp. v. Orris, Inc., 983 F.Supp. 963, 967 (D.Kan.1997).

Finally, the Compton court merely held that the trial court did not abuse its discretion when it admitted expert testimony based upon the expert’s familiarity with general engineering principles and concepts. That is a far cry from suggesting that a district court always abuses its discretion when it excludes an expert who may have some marginal familiarity with general concepts in the relevant field. Accordingly, our decision in Compton erects no bar to the District Court’s exclusion of Dr. Templeton’s testimony below.

Thus, the district court’s determination that Dr. Templeton did not possess the requisite qualifications to render an expert opinion concerning the adequacy of the warnings with respect to the MuItiHole Nail was not “ ‘arbitrary, capricious, whimsical, or manifestly unreasonable’ ” so as to constitute an abuse of discretion. Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir.1998) (quoting FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994)). On the contrary, as we have just pointed out, Dr. Templeton’s lack of qualifications to testify to the issue of “warnings” is well supported in the record.

B.

Ralston further contends that the district court abused its discretion in refusing to consider the October 3, 2000 and October 11, 2000 declarations of Dr. Bohn. According to Ralston, these later-filed affidavits did not contradict Dr. Bohn’s deposition testimony of March 1999. Moreover, Ralston argues that the affidavits were not “sham” affidavits, and therefore should not have been disregarded by the district court.

1. Contradictions in Dr. Bohn’s Testimony

Notwithstanding Ralston’s protestations to the contrary, our review of Dr. Bohn’s March 1999 deposition testimony reveals a number of material contradictions in his subsequent sworn affidavits. First, Dr. Bohn clearly indicated at his deposition that he had reviewed the Surgical Technique Brochure (which contained several warnings concerning the MultiHole Nail), and that he had been satisfied with the information provided therein. The only question he had, according to his deposition testimony, was whether or not to fill all the holes in the nail.

Q: And you reviewed that technique brochure?

Right.