Lin v. Solta Medical, Inc.

Background

The parties filed six motions seeking to exclude expert opinion testimony under Federal Rule of Evidence 702, which requires expert testimony to be reliable and helpful to the jury. Lin moved to exclude opinions by Dr. Stewart Wang, and by Jay Bennett and Richard Malwitz. Solta moved to exclude opinions by Monica Ip, Alan Schwartz, Dr. Christine Lee, and Boris Leschinsky. The court stated that the order applied to the use of the challenged opinions both at summary judgment and at trial. It also stated that its earlier order granting in part and denying in part Solta’s summary-judgment motion did not rely on any opinions excluded by this order.

Dr. Stewart Wang

Lin’s motion to exclude Dr. Wang’s testimony was granted in part and denied in part. The court granted the motion as to Wang’s first two opinions, which concerned whether the Ulthera and Thermage systems or treatment tips were authentic, defective, or counterfeit. The court found that Wang’s reliance on deposition testimony to assess authenticity was an ad hoc factual inquiry rather than a reliable scientific method. It also found that Wang was merely characterizing the evidence and would be improperly substituting his judgment for the jury’s. Those opinions were excluded.

The court also granted the motion as to Wang’s third opinion to the extent it addressed the medical standard of care or whether Dr. Huang departed from that standard. The court found Wang’s description of the standard of care too vague to help the jury and found that he acknowledged differences between Taiwan’s and the United States’ standards of care without being qualified to describe the applicable standard. Lin did not seek to exclude Wang’s opinion about her current physical condition and possible treatment options.

Jay Bennett and Richard Malwitz

Lin’s motion to exclude the testimony of Bennett and Malwitz was granted in part and denied in part. The court granted the motion as to Bennett’s opinion about the Thermage product’s safety. Bennett relied on the Food and Drug Administration’s approval as the basis for his safety opinion and offered no safety analysis based on his own expertise. The court found the opinion unreliable and redundant because the FDA’s review could be presented to the jury separately.

The court denied Lin’s request to exclude Bennett’s and Malwitz’s rebuttal opinions concerning Lin’s expert, Boris Leschinsky. It found that Bennett and Malwitz were long-time Solta employees whose jobs were business-related, rather than jobs that regularly involved giving expert testimony. As a result, they were not required to provide the type of written report required for retained experts, and the absence of such a report did not limit the scope of their rebuttal testimony in the way Lin argued.

Monica Ip

Solta’s motion to exclude Monica Ip’s testimony was denied. Ip calculated damages based on assumptions that Lin should recover for the contracts at issue. The court held that a damages expert may assume liability for purposes of calculating damages and need not independently decide whether the plaintiff will prevail. The jury, not Ip, would decide whether Solta was liable for contract damages. Although Ip primarily performed arithmetic, the court found that her calculations—which included lost revenue, transfer dates, and prejudgment interest—could help the jury assess a reasonable damages amount.

Alan Schwartz

Solta’s motion to exclude Alan Schwartz’s opinion testimony was granted. Schwartz’s opinions concerned Lin’s strict-liability, negligent-failure-to-warn, and manufacturing-defect causes of action. The court had already granted Solta’s summary-judgment motion as to those causes of action and found that Schwartz’s opinions could not help the jury decide any remaining issue.

Dr. Christine Lee

Solta’s motion to exclude Dr. Lee’s testimony was granted in part and denied in part.

For causation, the court allowed Lee to testify to the more limited opinion that Lin was burned during treatment with a Thermage device or a copycat device. The court found that opinion sufficiently supported by Lee’s clinical experience, review of the burn patterns, and comparison with her experience. But Lee could not testify that the Thermage device was the sole or primary cause of the burn. The court found that her method for reaching that broader conclusion was unreliable because she did not adequately consider Dr. Huang’s decisions and other possible causes. The court therefore granted in part and denied in part Solta’s motion as to this category.

The court granted Solta’s motion as to Lee’s opinions that the device or treatment tips were genuine. It found that Lee had not reliably ruled out counterfeit devices or tips. Her reasons included the device’s pulse count, error messages, secondhand-market availability, and the appearance of the burn, but the court found that she did not adequately explain or support those points or investigate whether counterfeit devices could have the same characteristics.

The court granted Solta’s motion as to Lee’s opinions about warning adequacy because the related strict-liability and negligent-failure-to-warn claims had already been resolved against Lin on summary judgment. The court also granted the motion as to failure-to-train testimony, unless Solta argued at trial that its training was adequate or provided a defense. The court granted in part and denied in part the motion concerning first-generation Thermage devices: Lee could describe her experience with those devices as background, but could not testify about their safety or operation, and could not tell the jury that her husband had been burned by an earlier-generation device.

Finally, the court granted Solta’s motion concerning Lee’s proposed opinions about Solta’s knowledge, intent, or financial motives. The court found that the opinions were not included in Lee’s written report, were not supported by a reliable method, and concerned claims already resolved on summary judgment. Those opinions were excluded.

Boris Leschinsky

Solta’s motion to exclude Leschinsky’s testimony was granted in part and denied in part. The court did not analyze proposed factual testimony about how the Thermage device works under the expert-testimony rules because Lin proposed that testimony as factual testimony and Solta did not challenge that use in its reply.

The court excluded Leschinsky’s opinion that relying on patient feedback to determine treatment energy was dangerous because it was a legal conclusion rather than helpful expert testimony. It also excluded his proposed opinions that a subsurface temperature reader and an automatic energy cap were feasible design alternatives. Although Leschinsky had experience with certain medical devices using radiofrequency technology, the court found that he lacked the relevant expert knowledge and reliable method concerning the specific aesthetic-device designs at issue.

The court also excluded Leschinsky’s opinions that the proposed safety features would have prevented Lin’s burns, that the device should have displayed warnings to doctors during treatment, that counterfeit devices or tips would be difficult to manufacture, and that physicians were financially motivated to perform procedures quickly. The court found those opinions unsupported by reliable expertise or methodology, outside Leschinsky’s qualifications, irrelevant, or unhelpful to the jury. In particular, an opinion that counterfeit tips were difficult to make would not resolve whether a counterfeit tip was used in Lin’s treatment.

The court granted Solta’s motion as to Leschinsky’s opinions about the adequacy of Solta’s user manual, warnings, and training. Lin did not oppose this part of the motion, and the court also found that the opinions lacked an explained methodology and related to failure-to-warn claims already resolved on summary judgment.

Disposition

The court’s conclusion was that Lin’s motion to exclude Wang’s testimony was granted in part and denied in part; Lin’s motion to exclude Bennett’s and Malwitz’s testimony was granted in part and denied in part; Solta’s motion to exclude Ip’s testimony was denied; Solta’s motion to exclude Schwartz’s testimony was granted; Solta’s motion to exclude Lee’s testimony was granted in part and denied in part; and Solta’s motion to exclude Leschinsky’s testimony was granted in part and denied in part.