18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 589 hearing loss (“NIHL”) as a result of his military service; and (ii) the audiograms of Mr. McCombs support that the hearing protection devices he used during his service protected his hearing. Plaintiff argued that Driscoll’s opinions should be excluded because he was not qualified, and he also failed to provide a reliable methodology, to support his opinion on the cause of McCombs’ tinnitus and related injuries. Plaintiff also argued that the remainder of Driscoll’s opinions were unhelpful to the jury. The Court ruled that Driscoll would not be permitted to offer the opinion that McCombs did not have noise-induced hearing loss as a result of his military service because he was not qualified to render such opinions as he was an engineer, not a medical doctor or audiologist. The Court also agreed with Plaintiff that Driscoll’s opinion that Plaintiff wore hearing protection devices during his military service was unhelpful to the jury, and was nothing more than lay opinion testimony disguised as “expert” testimony. However, the Court disagreed with Plaintiff that Driscoll’s opinion regarding McCombs’ risk of hearing injury in Afghanistan at the time his truck was struck by an IED was unhelpful to the jury because it was contradictory to his own opinions, finding that any contradictory statements went to the weight of Driscoll’s testimony and not to its admissibility. The Court reasoned that Defendants’ objections went to Dr. Parker’s opinions related to the named Plaintiff Baker’s post-traumatic stress disorder (“PTSD”) and Dr. Fagelson’s opinions related to McCombs’ PTSD and sleep disorder. First, the Court disagreed with Defendants’ argument that Packer’s opinion was speculative because he opined that hearing loss or tinnitus "may" affect Baker’s PTSD. Id. at *12. The Court found that this opinion was not speculative because Packer was not offering the opinion that Baker’s hearing loss or tinnitus may lead to a possible future PTSD diagnosis. With respect to Dr. Fagelson, the Court agreed that he was not qualified to diagnose PTSD since he was not a psychiatrist, psychologist, or medical doctor. However, the Court concluded that Fagelson was not diagnosing McCombs’ PTSD. Instead, like Dr. Packer, he relied on McCombs’ medical records reflecting a PTSD diagnosis, \ and merely offered an opinion regarding the relationship between tinnitus and his sleep disorder. The Court ruled that to the extent that Fagelson’s opinion was a sleep disorder diagnosis, he was not qualified to offer that opinion, but to the extent that he was offering an opinion that McCombs’ tinnitus could affect his ability to sleep or the quality of his sleep, the Court concluded that his clinical experience treating tinnitus patients rendered him minimally competent to offer that opinion. In sum, the Court granted in part and denied in part the parties’ omnibus motions to exclude expert opinions under Rule 702 and Daubert . In Re Bair Hugger Forced Air Warming Devices Products Liability Litigation, 2021 U.S. App. LEXIS 24255 (8th Cir. Aug. 16, 2021). In this multi-district class action litigation (“MDL”), Plaintiffs alleged that they contracted periprosthetic joint infections (“PJIs”) due to the use of Defendant’s Bair Hugger, a convective patient warming device, during their orthopedic-implant surgeries. The District Court excluded Plaintiffs’ general-causation medical experts as well as one of their engineering experts, and then granted summary judgment in favor of Defendant as to all of Plaintiffs’ claims. On Plaintiffs’ appeal to the Eighth Circuit, Plaintiffs raised four issues. First, Plaintiffs argued that the District Court abused its discretion in excluding their general-causation medical experts and engineering expert. Second, Plaintiffs asserted that the District Court erred in granting Defendant summary judgment. Third, Plaintiffs maintained that the District Court abused its discretion in denying Plaintiffs’ request for certain discovery. Fourth, Plaintiffs argued that the District Court abused its discretion in ordering certain filings on its docket to remain sealed, and therefore requested the Eighth Circuit to unseal those filings. The Eighth Circuit reversed in full the order as to the exclusion of Plaintiffs’ general-causation medical experts and reversed in part the order regarding the exclusion of their engineering expert. The Eighth Circuit determined that the District Court erroneously excluded the experts on the basis that “too great an analytical gap existed” between the literature and Plaintiffs’ medical experts’ general-causation opinions. Id . at *12. According to the Eighth Circuit, the question for the District Court was whether there was sufficient support in the factual basis for the experts’ opinions that the Bair Hugger was capable of causing airflow disruption in a real-world operating room that transmitted bacteria to the surgical site. The District Court had held that there was not, but the Eight Circuit disagreed and from a review of the record on appeal it determined that there was significant support for the proposition that the Bair Hugger independently was capable of disrupting airflow so as to transmit bacteria to the surgical site when other airflow-disruptive variables are controlled for. In sum, the Eighth Circuit reasoned that to exclude the experts’ opinions because their conclusions lacked general acceptance, and as the District Court had simply taken a side on an issue that was currently the focus of extensive scientific research and debate. Accordingly, in light its rejection of the District Court’s analytical-gap rationale for exclusion, the Eighth Circuit concluded that the lack of general acceptance did not independently justify the exclusion of Plaintiffs’ general-causation medical experts. Further, because the District Court’s grant of summary judgment to