[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 30, 2011
No. 10-12578 JOHN LEY
________________________ CLERK
D.C. Docket No. 7:08-cv-00114-HL
WANDA WILLIAMS,
Plaintiff-Appellant,
versus
MAST BIOSURGERY USA, INC.,
a wholly owned subsidiary of Mast
Biosurgery AG, the parent company,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 30, 2011)
Before TJOFLAT, WILSON and RIPPLE,* Circuit Judges.
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
RIPPLE, Circuit Judge:
Wanda Williams brought this diversity action in the United States District
Court for the Middle District of Georgia against Mast Biosurgery USA, Inc.
(“Mast”), a medical device manufacturer. She sought relief under Georgia
products liability law. After barring certain testimony that Ms. Williams had
attempted to offer in order to establish an element of her claim, the district court
entered summary judgment for Mast. We conclude that the district court did not
err in its evidentiary rulings and that Ms. Williams has failed to introduce
evidence sufficient to establish the manufacturing defect that she alleged.
Accordingly, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
In 2006, Ms. Williams sought treatment for a painful, undiagnosed
gynecological condition that was suspected to contribute to infertility. An
ultrasound revealed a large ovarian cyst. Ms. Williams underwent a laproscopic
procedure to drain the cyst. During the procedure, Dr. Adcock, her gynecologist,
observed within Ms. Williams’s abdomen significant dense adhesions that had
2
resulted from a prior surgery some years before. He further observed that these
adhesions “were suspicious for malignancy or something to that effect.” R.37,
Ex. 1 at 48.
To address further these observations, Dr. Adcock performed an exploratory
laparotomy on August 22, 2006. During this second procedure, he biopsied Ms.
Williams’s peritoneum and both ovaries and removed “extensive adhesions of
[the] sigmoid and rectum to the posterior uterine fundus.” Id. at 49 (internal
quotation marks omitted). To prevent new adhesions from forming, Dr. Adcock
placed four pieces of SurgiWrap in Ms. Williams’s abdomen. SurgiWrap is a
product designed and produced by Mast. It is marketed as a bioresorbable barrier
used to prevent post-surgical adhesions. Dr. Adcock believed that preventing
further adhesions between Ms. Williams’s organs could have a positive effect on
her fertility.
One month after the August 22 procedure, Ms. Williams returned to
Dr. Adcock’s office. She presented a number of symptoms, including persistent
diarrhea, fever and pain in the lower left quadrant of her abdomen. Observing that
she “looked really sick,” Dr. Adcock admitted her to the hospital and ordered tests
to ascertain the reason for her distress. Id. at 81. After ruling out various causes
of her symptoms, he referred her to Dr. George Yared, a gastroenterologist, for a
3
colonoscopy. During the colonoscopy, Dr. Yared observed what he described as
several stiff, hard and brittle pieces of plastic in Ms. Williams’s colon, some as
large as fourteen to eighteen millimeters. He removed two large pieces, but was
unable to remove other pieces embedded in the wall of the colon. He suspected
the material was the SurgiWrap used by Dr. Adcock during the August 22
procedure. The day following the colonoscopy, Ms. Williams underwent, at Dr.
Yared’s recommendation, a further exploratory procedure by Dr. Robert Brown, a
general surgeon. In addition to cleaning out the significant infection in her pelvis,
Dr. Brown performed a partial sigmoid colectomy to remove a damaged section of
her colon, an appendectomy and a colostomy formation. He found and removed
multiple small pieces that he believed were a foreign, clear, plastic-like substance.
A pathologist, Dr. Robert Nelms, Jr., examined the specimens and described the
material as stiff and thick.
The foreign bodies removed from Ms. Williams were not subjected to any
chemical or other testing to determine their identity or composition.
B. District Court Proceedings
Ms. Williams filed a complaint against Mast seeking damages for her
injuries on a strict products liability claim. She contended that the SurgiWrap
4
used in her procedure had a manufacturing defect that caused it to perform in a
manner other than as intended.
1. Evidentiary Matters
During discovery, Mast moved to exclude certain testimony offered by
Ms. Williams’s treating physicians. It contended that they could not serve as
experts. Preferring to wait until the depositions of the treating physicians had
been taken, the court declined to rule on the motion. Mast therefore renewed its
motion after the depositions were taken. It argued both that Ms. Williams had
failed to abide by the procedural rules regarding expert designation and that the
testimony failed to meet the standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Finally, Mast filed a motion for summary judgment, contending that Ms. Williams
had not produced any admissible evidence that the SurgiWrap suffered from any
manufacturing defect or that SurgiWrap was the cause of any injury to her.
The district court first granted in part and denied in part the motion to
exclude testimony. The court evaluated the deposition of each physician
independently, first to determine whether the testimony was lay or expert and then,
if expert, to determine whether it was admissible under Daubert.
5
As to Dr. Adcock, the court ruled that he had offered admissible lay
testimony regarding Ms. Williams’s condition and his treatment of her. It then
concluded that Dr. Adcock’s further statements that, in his opinion, SurgiWrap
had not dissolved as it was supposed to do and had instead become hardened
shards of plastic were expert opinions. The court explained that it had “serious
doubts,” R.52 at 5, regarding whether Dr. Adcock was qualified to offer an
opinion on this matter, given his limited experience with the product, his
admissions that he had not reviewed medical literature about it or conducted any
tests, and his lack of expertise in plastics generally. Nevertheless, the court
considered whether his testimony would be reliable and concluded that it would
not. The court, therefore, barred Dr. Adcock’s proffered testimony that SurgiWrap
did not perform as intended and instead had hardened. It also refused to allow his
testimony that the material removed from Ms. Williams was SurgiWrap.
Turning to the testimony of Dr. Yared, the district court concluded that he
too would offer a mix of lay and expert testimony. However, the court ruled that
Dr. Yared’s expert opinion that Ms. Williams’s injuries were caused by the foreign
bodies he had removed was admissible. Unlike Dr. Adcock, Dr. Yared had
followed an established methodology, differential diagnosis, to arrive at his
conclusion about causation. Using this method, he had considered numerous
6
potential causes of the fistula, ruled out all but the foreign body and “ruled in” the
foreign body as a potential cause. Id. at 11. Accordingly, Dr. Yared was
permitted to testify not only about his observations, but also about causation. He
was barred, however, from testifying that the foreign body was SurgiWrap “as he
has no basis for that testimony.” Id.
With respect to Dr. Brown’s testimony, the court determined that it was lay
testimony and noted that he had admitted that “he did not know what caused the
perforation” in Ms. Williams’s colon. Id. at 12.
Finally, as to Dr. Nelms’s testimony, the court observed that he had
produced a report indicating that the foreign materials removed from Ms. Williams
were SurgiWrap. The court noted that his deposition testimony clarified that this
statement in his report was based solely on the label on the sample provided to
him; he had done nothing to verify the composition of the foreign body. The court
determined that he would not be permitted to testify that the material he had
inspected was SurgiWrap because any such opinion would not be reliable.
The court ruled therefore that only Dr. Yared would be permitted to give
opinion testimony. It further declined to bar that testimony on the basis of the
procedural challenges raised by Mast. It ruled that, because Dr. Yared was a
treating physician who had been deposed extensively on the subjects in question,
7
exclusion was not warranted, despite the failure of the plaintiffs to abide by the
designation requirements of Federal Rule of Civil Procedure 26. See id. at 11 n.6.1
2. Ruling on Summary Judgment
In a separate order, the court granted summary judgment to Mast. The court
noted that, under Georgia law, a plaintiff bringing a strict products liability claim
based on a manufacturing defect was required to produce evidence from which a
jury could conclude: (1) that the product was defective and (2) that the defect
caused the plaintiff’s injury.
The court reviewed the deposition testimony and concluded that Ms.
Williams had produced no admissible evidence of a defect. Specifically, the court
noted that only Dr. Adcock had testified that the product was defective and that his
1
Federal Rule of Civil Procedure 26(a)(2) provides that a party must disclose any
witness who is expected to provide expert testimony under the Federal Rules of Evidence. The
rule further requires that, when an expert has been “retained or specially employed to provide
expert testimony in the case,” the witness must provide an expert report detailing all opinions the
expert will express and the basis for them. Fed. R. Civ. P. 26(a)(2)(B). Mast urged that
Ms. Williams should be barred from presenting the testimony of her physicians because she
failed to comply with the designation and report requirements of Rule 26(a)(2) within the time
prescribed by the district court. The district court initially rejected the procedural challenge,
stating that it would be appropriate to consider after depositions had been taken and the content
of the physician testimony was clear.
In its final evidentiary order, the court concluded that it would not exclude the only expert
testimony admissible in substance, that of Dr. Yared, on the basis of failure to comply with the
rule. The court found that there was no surprise in the use of Dr. Yared and that Mast had had an
opportunity to depose him fully on the relevant subjects. See R.52 at 11 n.6.
8
testimony on that issue had been barred. Accordingly, summary judgment was
entered for Mast. The court did not reach Mast’s alternative arguments that
Ms. Williams had failed to produce evidence of causation.
Ms. Williams now appeals.
II
DISCUSSION
Ms. Williams raises two contentions in this appeal. First, she submits that
the district court erred in limiting the testimony of her physicians. Second, she
contends that she presented sufficient evidence under Georgia products liability
law to create triable issues of fact and therefore withstand summary judgment.
A. The Evidentiary Ruling
We review questions regarding the district court’s admission of evidence for
abuse of discretion. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir.
2009) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42, 118 S. Ct. 512, 517,
139 L. Ed. 2d 508, 516 (1997)). Of course, premising an evidentiary ruling on an
erroneous view of the law is considered an abuse of discretion. Goodman-Gable-
Gould Co. v. Tiara Condo. Ass’n, 595 F.3d 1203, 1210 (11th Cir. 2010).
9
Ms. Williams contends that the district court erred in limiting the testimony
of her treating physicians. In her view, the testimony of all four physicians
involved in her care and treatment should have been admitted in full as lay
testimony. More precisely, she believes that the district court erred when it
refused to admit the physicians’ testimony on the question of whether the
SurgiWrap was defective. She believes that the district court erred in applying the
Supreme Court’s analysis under Daubert to the physicians’ testimony because that
rule applies only to expert opinions.
The testimony of treating physicians presents special evidentiary problems
that require great care and circumspection by the trial court. Much of the
testimony proffered by treating physicians is an account of their experience in the
course of providing care to their patients. Often, however, their proffered
testimony can go beyond that sphere and purport to provide explanations of
scientific and technical information not grounded in their own observations and
technical experience. When such a situation presents itself, the trial court must
determine whether testimony not grounded in the physician’s own experience
meets the standard for admission as expert testimony. As we pointed out in United
10
States v. Henderson, 409 F.3d 1293 (11th Cir. 2005), distinguishing between lay2
and expert testimony is an important one; arriving at an appropriate conclusion
requires that trial courts be vigilant in ensuring that the reliability requirements set
forth in Rule 7023 not “‘be evaded through the simple expedient of proffering an
expert in lay witness clothing.’” Id. at 1300 (quoting Fed. R. Evid. 701 advisory
committee’s note to the 2000 amendment).
In Henderson, we did not apply the governing principles in this area but
instead relied upon a harmless error analysis. Nevertheless, our discussion in the
course of that decision sheds substantial light on the distinction between lay and
expert testimony in the context of physician testimony.4 We cited with approval
2
Under Federal Rule of Evidence 701, lay witnesses may offer opinions
which are (a) rationally based on the perception of the witness, and (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
3
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.
4
In United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005), an oral surgeon offered
testimony about the jaw fracture of a patient under her care. She described not only the patient’s
(continued...)
11
the decision of our colleagues in the Tenth Circuit in Davoll v. Webb, 194 F.3d
1116 (10th Cir. 1999). In Davoll, the Tenth Circuit wrote that “[a] treating
physician is not considered an expert witness if he or she testifies about
observations based on personal knowledge, including the treatment of the party.”
Id. at 1138; see also Henderson, 409 F.3d at 1300 (citing Davoll). We also noted
with approval the Tenth Circuit’s decision in Weese v. Schukman, 98 F.3d 542
(10th Cir. 1996), that a physician may offer lay opinion testimony, consistent with
Rule 701, when the opinion is “based on his experience as a physician and [is]
clearly helpful to an understanding of his decision making process in the
situation.” Id. at 550; see also Henderson, 409 F.3d at 1300 (citing Weese with
approval). These cases make clear that, when a treating physician’s testimony is
based on a hypothesis, not the experience of treating the patient, it crosses the line
from lay to expert testimony, and it must comply with the requirements of Rule
702 and the strictures of Daubert.
4
(...continued)
physical condition and her treatment of it, but also opined that it had resulted from a blow to the
patient’s face. We noted that it was “arguable” that the trial court erred in admitting the opinion
testimony under Rule 701: “[A]lthough [the surgeon] was the treating physician, her opinion
regarding the cause of [the patient’s] injuries was not helpful to a clear understanding of her
decision making process, nor did it pertain to [the patient’s] treatment.” Id. at 1300. Her
testimony as to cause was, she admitted, “a hypothesis,” which we noted was “[t]he essential
difference between expert and lay” testimony. Id. (modification in original) (internal quotation
marks omitted).
12
The next question, therefore, is whether any of the proffered testimony
should have been considered lay as opposed to expert testimony and should have
been admitted on that basis. Ms. Williams asks that, in answering this question,
we focus on the physician statements that the foreign substance removed from her
abdominal cavity was SurgiWrap. In her view, the physician’s conclusion that the
substance was SurgiWrap was necessary to treat her, and, therefore, under the
approach outlined in Henderson, the testimony is admissible as the conclusion of a
treating physician. Upon examination of the record, however, we cannot accept
this argument. The record establishes that her treating physicians were concerned
with the presence of foreign material and with its effect on her physical condition.
The exact identity of the substance was not critical to the decision to remove it.
Indeed, the fact that none of the physicians found it necessary to identify
definitively the removed pieces--instead allowing them to be discarded--
demonstrates that conclusive findings about its identity were not necessary to her
treatment.
Although Ms. Williams does not raise it specifically, one other piece of
testimony merits our consideration. Dr. Adcock provided the only direct
testimony that SurgiWrap had failed to perform as intended and thus was
defective. We agree with the district court that such a conclusion requires some
13
knowledge of how SurgiWrap should have performed, a question outside the ken
of a lay witness because it must be premised on scientific or other specialized
knowledge. The district court was therefore correct to apply the Daubert analysis
to this testimony.5
B. Summary Judgment
Ms. Williams further submits that the district court erred in granting
summary judgment to Mast. She disagrees with the district court’s view that she
presented no admissible evidence that the SurgiWrap was defective. We review a
district court’s entry of summary judgment de novo. Am. Fed’n of Labor & Cong.
of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011). Summary
judgment is appropriate where “the movant shows that there is 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). “No genuine issue of material fact exists if a party has failed
to ‘make a showing sufficient to establish the existence of an element . . . on which
that party will bear the burden of proof at trial.’” Am. Fed’n of Labor, 637 F.3d at
5
We do not understand Ms. Williams to argue that the district court misapplied Daubert
on this or any other issue, only that it was inapplicable because the physician testimony she
intended to offer was all lay testimony. We therefore do not review the district court’s Daubert
analysis itself.
14
1186-87 (modification in original) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986)).
Because the district court’s jurisdiction was based on diversity of
citizenship, see 28 U.S.C. § 1332, the merits of the dispute are governed by state
law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L.
Ed. 1188, 1194 (1938); Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132
(11th Cir. 2010).
At the outset, we believe it important to state with precision the nature of
the claim presented by Ms. Williams. As the case comes to us, she brings a single
claim for a manufacturing defect against Mast. With respect to such claims,
Georgia law provides:
The manufacturer of any personal property sold as new property
directly or through a dealer or any other person shall be liable in tort,
irrespective of privity, to any natural person who may use, consume,
or reasonably be affected by the property and who suffers injury to
his person or property because the property when sold by the
manufacturer was not merchantable and reasonably suited to the use
intended, and its condition when sold is the proximate cause of the
injury sustained.
Ga. Code Ann. § 51-1-11(b)(1). The Court of Apppeals of Georgia described
these elements succinctly when it stated:
To establish defendant’s strict liability, plaintiffs must prove that
defendant is the manufacturer of the property, that the property when
15
sold by the manufacturer was not merchantable and reasonably suited
to the use intended (i.e., defective), and that its condition when sold
was the proximate cause of the injury sustained.
Chicago Hardware & Fixture Co. v. Letterman, 236 Ga. App. 21, 510 S.E.2d 875,
877-78 (1999) (footnote omitted); see also Center Chem. Co. v. Parzini, 234 Ga.
868, 218 S.E.2d 580, 582 (1975). Mast contends that Ms. Williams cannot
proceed to a jury under the circumstances of this case without expert testimony to
establish these elements. Ms. Williams counters that Georgia law is not so
restrictive.
The district court took the view that Mast ought to be accorded summary
judgment because there was no evidence of record to establish that it had sold a
product that was defective at the time it was sold. The court noted that the only
evidence on this issue was the testimony of Dr. Adcock and that his testimony had
been excluded on the ground that he was not qualified to render an opinion as to
whether the product was defective. The district court ruled that, without that
testimony, Ms. Williams was without any testimony, expert or otherwise, on the
issue of the product’s defectiveness.
We believe that the district court was correct in its evaluation of the
situation. As Mast quite correctly concedes, there was evidence, through the
testimony of Dr. Yared, that there was a foreign substance in Ms. Williams’s
16
abdominal cavity and evidence, through the admissible portion of Dr. Adcock’s
testimony, that the only foreign substance that had been left in the abdominal
cavity was the SurgiWrap. However, the simple presence of the material in her
body does not establish that the product was defective when it was sold by Mast.
There was no admissible evidence as to how the material was supposed to break
down after placement, whether the condition observed was within the range of
expected consequences of its placement or whether it was the unexpected
consequences of the placement that caused the injury observed by Dr. Yared.
It is important to note that, under Georgia law, it is not always necessary to
have expert testimony on the question of whether there is a manufacturing defect
in a product. Georgia courts have held that, in some situations, lay testimony can
provide sufficient evidence of defect. Two cases are particularly instructive. In
McDonald v. Mazda Motors of America, Inc., 269 Ga. App. 62, 603 S.E.2d 456,
461 (2004), the Court of Appeals of Georgia examined a claim under the related
theory of breach of implied warranty, which also requires demonstration of a
defect. The plaintiff claimed that, almost immediately after purchase, a new
vehicle began operating with a loud rattling noise and that the dealer was unable to
repair it. The defendant produced an expert, who testified that the vehicle had no
defect, and the trial court granted summary judgment to the defendant on that
17
basis. The Court of Appeals of Georgia reversed. It first stated that expert
testimony on the question of defect was unnecessary. In the case before it, the lay
testimony about the operation of the vehicle was direct evidence “that gave rise to
reasonable inferences that a jury could draw of the presence of defects and that
such defects existed from the time of sale.” Id. The choice between the expert
and lay testimony on this matter, said the court, was one for the jury. Id.; see also
Owens v. Gen. Motors Corp., 272 Ga. App. 842, 613 S.E.2d 651, 655 (2005)
(concluding that a factual issue precluded summary judgment where the plaintiff
had presented lay testimony that seatbelts had not functioned as intended, because
issue was a “matter[] not of science but of skill and experience” (internal quotation
marks omitted)).
The most instructive case for our present purposes is Williams v. American
Medical Systems, 248 Ga. App. 682, 548 S.E.2d 371, 374 (2001). There, even a
seemingly more technical claim involving a medical product survived summary
judgment without expert testimony to establish a defect. In Williams, the plaintiff
underwent a procedure to insert an inflatable penile implant. At the time of the
procedure, the device appeared to be functioning normally; one month later,
however, the plaintiff reported a variety of symptoms to the surgeon. Following a
subsequent corrective procedure, the surgeon described the problem: an abnormal
18
disconnection between two parts of the implant, which had caused fluid leakage
and infection. The appellate court determined that the treating physician’s
testimony was sufficient “evidence that the device did not operate as intended” for
the strict liability claim to survive summary judgment. Id. at 374.6
McDonald and Williams illustrate that a plaintiff need not always rely upon
expert testimony to establish that the device did not “operate as intended,”
Williams, 548 S.E.2d at 374. The nature of the product, the complexity of the
facts and the nature of the purported product malfunction will determine the nature
of the evidence necessary to establish this statutory prerequisite to liability. The
claim in McDonald was that the new car’s engine was “running rough.”
McDonald, 603 S.E.2d at 458 (internal quotation marks omitted). Such a
condition undoubtedly is within the common experience of a jury; expert
testimony is unnecessary. Williams, although a medical case, involved a
particularly obvious type of defect; because of his experience with the device and
his observation of the device in the patient, the surgeon could see a clear break in
the implant where the product should have remained together.
6
On the negligence-based claims, however, the court went on to hold that there was a
lack of evidence that the defect could be attributed to any negligence on the part of the
manufacturer. See Williams v. Am. Med. Sys., 248 Ga. App. 682, 548 S.E.2d 371, 374 (2001).
19
By contrast, in the present case, the issue of defect was significantly more
complicated. To establish that the SurgiWrap implanted in her abdominal cavity
was defective, Ms. Williams needed to demonstrate that it did not perform as
intended, which required her also to establish how the product was intended to
function. This issue presented an unremarkable task in McDonald and in
Williams. In McDonald, testimony about direct observations sufficed to establish
that the motor was running roughly; similarly, in Williams, testimony that the
implant was in pieces allowed a jury to conclude that it was not operating as
intended. In Ms. Williams’s case, however, the issue of whether there was a
defect concerned a bioresorbable plastic product with which even the treating
physicians, let alone the lay jurors, had little to no experience. Under these
circumstances, where those who had observed the patient and her condition could
not assess accurately what they had observed and its significance, we do not
believe that Georgia law would have permitted Ms. Williams to proceed to a jury
without testimony about the nature of the product, its properties or its expected
functioning when implanted in the human body.
Finally, the record does not contain other admissible evidence of defect.
Although circumstantial evidence can suffice in some situations, see Firestone
Tire & Rubber Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905, 908-09 (1978), the
20
only such evidence in the record is Dr. Yared’s expert testimony that the foreign
body produced an abscess, which led to the other injuries Ms. Williams sustained.
This testimony does not demonstrate that SurgiWrap itself performed other than as
expected. More precisely, it does not strengthen the inference that it was a
manufacturing defect in SurgiWrap that created these conditions, rather than any
number of other potential explanations that were also consistent with a foreign
body creating an abscess: The product may have been mishandled; the product
may have been inserted in a negligent manner; the product may be contraindicated
for patients with particular sensitivities, and Ms. Williams may have been within
that group. We do not require Ms. Williams to provide evidence capable of
disproving all other potential causes to survive summary judgment; however, she
must provide evidence that would permit a jury to select her explanation, that of a
manufacturing defect, as the most likely. Dr. Yared’s testimony does not fulfill
that function.
In sum, Ms. Williams did not produce evidence, expert or otherwise, from
which a reasonable jury could conclude that the SurgiWrap implanted in her
abdomen contained a manufacturing defect. Accordingly, the district court
correctly entered summary judgment for Mast.
21
Conclusion
The district court did not abuse its discretion in limiting Ms. Williams’s
treating physicians’ testimony. Further, because Ms. Williams failed to produce
sufficient evidence of a defect in the SurgiWrap used in her procedure, the district
court correctly entered summary judgment for Mast. We therefore affirm the
judgment of the district court.
AFFIRMED
22