Alabama has at all times had some moderately uncommon jurisprudence.  In product legal responsibility, the Yellowhammer State doesn’t have negligence or strict legal responsibility, however moderately a hybrid known as the Alabama Prolonged Producers Legal responsibility Doctrine (“AEMLD”).  See Casrell v. Altec Industries, Inc., 335 So.second 128, 132-33 (Ala. 1976).  Extra just lately, the Alabama Supreme Courtroom twice adopted the intense pro-plaintiff innovator legal responsibility concept in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and outdated, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014).  On that event, the Alabama legislature overruled the court docket.  See Ala. C. §6-5-530.  Extra just lately than that, the identical court docket approved plaintiffs to perjure themselves and declare that they might have ignored their medical doctors’ suggestions in an effort to declare causation in realized middleman instances.  Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022).  Most just lately, and most notoriously, the Alabama Supreme Courtroom declared frozen embryos to be individuals – no less than for the needs of tort legislation.  LePage v. Middle for Reproductive Medication, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024).  Who is aware of? By 2030, Alabama may try to rely blastocysts as “individuals” for functions of the census – though not for tort functions, because the legislature seems to have stepped in once more.

We learn one other weird – if not practically as infamous – Alabama legislation resolution just lately.  Ahmed v. Johnson & Johnson Healthcare Methods, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024).  What’s weird about it?  It allowed a plaintiff in a medical machine product legal responsibility case (hip implant) get to the jury with none medical professional testimony on causation.  Id. at *16 (entitled “Abstract Judgment shouldn’t be Required on All of Plaintiff’s Claims Even Although She Affords No Knowledgeable Proof Relating to Medical Causation”).

That’s simply plain bizarre.  We might agree or disagree with different elements of Ahmed (see beneath), however nothing else go away us scratching our heads.  As we identified just lately, the Sixth Circuit grew to become the primary federal court docket of appeals to look at all fifty states and maintain that each considered one of them requires professional medical testimony to ascertain causation:

[A]s an MDL, the problem was ruled by the substantive state legislation of the transferor state.  So the court docket reviewed the legislation of all fifty states, concluding that each one states require the plaintiff in instances involving complicated problems with medical causation to current professional testimony on the topic.  The district court docket doesn’t stand alone:  different district courts have agreed that each one jurisdictions require professional testimony to point out common causation, no less than the place the problems are medically complicated and outdoors frequent data and lay expertise.

In re Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin & Metformin) Merchandise Legal responsibility Litigation, ___ F.4th ___,  2024 WL 577372, at *6 (sixth Cir. Feb. 13, 2024) (citing In re Lipitor (Atorvastatin Calcium) Advertising, Gross sales Practices & Merchandise Legal responsibility Litigation, 227 F. Supp.3d 452, 469-78 (D.S.C. 2017) (amassing instances), aff’d, 892 F.3d 624 (ninth Cir. 2018), and In re Mirena IUS Levonorgestrel-Associated Merchandise Legal responsibility Litigation (No. II), 387 F. Supp.3d 323, 341 (S.D.N.Y. 2019), aff’d, 982 F.3d 113 (second Cir. 2020)) (different citations, citation marks, and footnotes omitted).

Certainly, shortly after the above-quoted Mirena resolution, we compiled a 50-state survey of this concern in 2019, entitled “Prescription Medical Product Causation – Knowledgeable Required.”  That submit collected all caselaw, as of 2019 (it’s not up to date) to exhibit that each state within the union requires professional causation in complicated product legal responsibility instances.  At that time, along with the 2 choices cited in Onglyza, we counted 5 different MDL choices for a similar proposition.

As well as, we had the next to say about Alabama legislation:

Underneath Alabama legislation, professional testimony is required to ascertain causation the place “the character and origin” of the damage is “past the understanding of the common individual.”  Ex parte Trinity Industries, Inc., 680 So.second 262, 269 (Ala. 1996).  Thus, “[p]laintiffs should show the toxicity of [a product] and that it had a poisonous impact on them inflicting the accidents that they suffered,” and “[t]his sort of proof requires professional testimony.”  McClain v. Metabolife Worldwide, Inc., 401 F.3d 1233, 1237 (eleventh Cir. 2005) (making use of Alabama legislation).

The interplay between a posh and technical medical machine and the distinctive physiological and medical circumstances of the affected person during which it’s implanted is a topic on which no strange juror might rationally be anticipated to have data.  The web result’s that, with out the advantage of professional testimony, an affordable jury couldn’t presumably make a dedication . . . that [plaintiff’s] accidents have been attributable to a . . . defect within the [product].

Hughes v. Stryker Gross sales Corp., 2010 WL 1961051, at *5 (S.D. Ala. Might 13, 2010), aff’d, 423 F. Appx. 878, 881 (fifth Cir. 2011) (on foundation of district court docket’s reasoning).  “[I]n the standard case involving a posh medical machine, the absence of professional testimony would pressure a jury to interact in hypothesis and conjecture on problems with defect and causation,” thus “courts routinely require professional testimony in such issues.”  Id.

Thus, “Alabama courts persistently have opined that . . ., when the product at concern is of a posh and technical nature, the plaintiff’s proof of a defect ought to be within the type of professional testimony.  Bloodsworth v. Smith & Nephew, Inc., 476 F. Supp.second 1348, 1353 n.3 (M.D. Ala. 2006).  See Drake v. Ortho-McNeil-Janssen Prescription drugs, 2018 WL 1431646 (N.D. Ala. March 22, 2018) (“[d]ue to the complicated nature of the claims, professional testimony typically is required to ascertain common and particular causation in product legal responsibility instances”); Brantley v. Worldwide Paper Co., 2017 WL 2292767, at *16 (M.D. Ala. Might 24, 2017) (“The plaintiffs should set up each common and particular causation via professional proof.”); Jones v. Novartis Prescription drugs Corp., 2017 WL 553134, at *17 (N.D. Ala. Feb. 10, 2017) (“plaintiffs should present professional testimony to ascertain each common and particular causation”), aff’d, 720 F. Appx. 1006 (eleventh Cir. 2018); Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp.second 1316, 1332 (M.D. Ala. 2006) (plaintiff “should current professional proof on common causation.  With out proof of causation, she can’t prevail”) (quotation omitted); Sutherland v. Matrixx Initiatives, Inc., 2006 WL 6617000, at *14 (N.D. Ala. 2006) (“with out an professional to attach a toxin to an damage, there is no such thing as a poisonous tort”); Emody v. Medtronic, Inc., 238 F. Supp.second 1291, 1295 (N.D. Ala. 2003) (“An important aspect of all product legal responsibility instances is professional testimony . . . {that a} defect was the medical explanation for plaintiff’s claimed accidents.”).

So how might Ahmed go thus far astray?

Ahmed shouldn’t be a case the place the plaintiff had no specialists in any respect.  Reasonably, because the above heading we quoted states, plaintiff didn’t have any medical testimony.  Plaintiff did have an engineer paid to supply a “failure evaluation” opinion concerning the machine itself.  2024 WL 693078, at *6.  Although this engineer has “by no means analyzed” any form of plastic implant earlier than Ahmed, he was discovered certified as a consequence of his common “background and many years of expertise.”  Id.  Nonetheless, as even Ahmed admitted, “engineers usually are not certified to supply opinions as to medical causation.”  Id. at *11.

Who’s?  A medical physician.

However plaintiff nonetheless didn’t have any admissible medical testimony.  And we expect she wanted it.  Here’s a thumbnail timeline of the medical historical past.  Hip implantation surgical procedure; six weeks later a “popping sound” when “getting up”; one other month and “she informed her physician that the hip pops and locks up generally”; practically a month later, she fell; the following day, x-rays confirmed the implant “eccentrically positioned,” resulting in revision surgical procedure.  Id. at *2, 16.  Did the “eccentricity” pre-date the autumn, or did the autumn trigger it?  No physician ever opined on that.

Plaintiff did have a health care provider lined up – however for some motive (by no means defined) solely as a “rebuttal witness.”  Ahmed, 2024 WL 693078, at *13.  A rebuttal witness is simply that – not permitted to testify within the plaintiff’s case in chief, however “solely to contradict or rebut proof on the identical material recognized by one other get together.”  Id. (quotation and citation marks omitted). 

[Defendant’s medical] opinion is that plaintiff’s “medical procedures to restore and substitute her proper hip have been primarily unsuccessful for patient-specific causes and never as the results of any defect within the . . . parts used.” . . . [Plaintiff’s rebuttal witness] will then rebut [the defense] opinion that patient-specific components have been accountable by testifying that [plaintiff’s] failed whole hip substitute was “multifactorial.”

Id. at *13 (citations omitted).  Okay, however nonetheless no witness can so opine in plaintiff’s case in chief – and plaintiff bears the burden of proof.

The rebuttal witness “might not testify in plaintiff’s case-in-chief to ascertain medical causation.”  Id. at *14.  Alongside these strains, since that rebuttal witness was restricted to critiquing the protection witness, he “didn’t conduct a differential analysis on this case and was not required to take action.”  Id. at *15.  That implies that this medical witness couldn’t provide the essential medical causation opinion that Alabama legislation (and the legislation of each different state within the nation) required.  So the plaintiff in Ahmed unquestionably didn’t have any medical causation testimony for her case in chief.

Ahmed let plaintiff skate on this basic causation level by holding that the case wasn’t truly “complicated” in spite of everything.  Citing nothing – solely distinguishing the defendant’s authority – Ahmed held:  “even when whether or not the [implant’s] failure induced Plaintiff’s accidents was in dispute, it might be inside a juror’s purview that the damages over which Plaintiff sues resulted from the [implant’s] failure and never some alternate trigger.”  2024 WL 693078, at *17.  Why?  Pure “temporal relationship.”  Id.  However the Eleventh Circuit (like different courts) has mentioned “no” to that.

The problem of the chronological relationship results in one other essential level − proving a temporal relationship between [product use] and the onset of signs doesn’t set up a causal relationship.  In different phrases, just because an individual [uses a product] after which suffers an damage doesn’t present causation.  Drawing such a conclusion from temporal relationships results in the blunder of the submit hoc ergo propter hoc fallacy.  The submit hoc ergo propter hoc fallacy assumes causality from temporal sequence. . . .  It’s known as a fallacy as a result of it makes an assumption based mostly on the false inference {that a} temporal relationship proves a causal relationship.

McClain v. Metabolife Worldwide, Inc., 401 F.3d 1233, 1243 (eleventh Cir. 2005) (quotation omitted).  That’s exactly why professional testimony is required – so “that call makers won’t be misled by the submit hoc ergo propter hoc fallacy − the fallacy of assuming that as a result of a organic damage occurred after [an event], it should have been attributable to [that event].”  Id. (quotation and citation marks omitted).

Nonetheless, Ahmed held, based mostly solely on the engineering testimony about defect – that “on this case it’s definitely a ‘pure inference’ {that a} juror might make via human expertise that Plaintiff’s . . . damages concentrated in [her] proper hip – proximately resulted from the Hip Implant having failed.”  2024 WL 693078, at *17.  The “supporting” quotation, to Allison v. McGhan Medical Corp., 184 F.3d 1300 (eleventh Cir. 1999) (making use of Georgia legislation), is something however supportive, since Allison particularly held that lack of medical professional testimony (after Rule 702 exclusion) was deadly and required abstract judgment in that case.  Allison, 184 F.3d at 1320 (“medical professional testimony was important to show causation on this case”).

This end in Ahmed – {that a} plaintiff can get to the jury with none medical professional in any respect in a case involving alleged accidents from an implanted medical machine – seems each unprecedented and unsupported.  Even granting plaintiffs the whole lot their engineering professional might opine:  that the machine was “faulty” and subsequently might fail for the design causes so said, nothing excludes plaintiff’s fall the day earlier than because the medical explanation for the “eccentric” positioning that led to the revision surgical procedure and what adopted.

Except for that vast error, nonetheless, not all of Ahmed was horrible.  Particularly, one other facet of the plaintiff’s identical engineering professional’s testimony, regarding purported various designs, was excluded as a result of none of them truly existed and had truly been examined for feasibility.  This was not a case the place both the defendant, or a competitor, had introduced any of the supposed options to market.  Ahmed, 2024 WL 693078, at *9 (professional “was unable to reliably level to any particular competitor design”).  Given the dearth of actual world expertise with the claimed options, testing was a crucial a part of the premise for that opinion:

[The expert] is excluded from testifying at trial concerning any various design proposals which will have been accessible to Defendants in manufacturing the allegedly faulty [device].  It seems from the [record] that he merely conceptualized prospects when suggesting modifications to the [device design], that are an insufficiently dependable foundation for proposing various designs.

Id. (citations and citation marks omitted).  “[A]pplicable case legislation means that the failure to check a proposed various design or cite one other’s testing of the design is deadly to the admissibility of mentioned testimony.”  Id.  Plaintiff’s failure to ascertain any various design required dismissal of each plaintiff’s AEMLD and negligent design claims, for which another design is an important aspect.  Id. at *18.

That’s a pleasant sufficient secondary holding, however total, the holding in Ahmed {that a} plaintiff can set up medical causation with none medical testimony was each incorrect and unprecedented.