Tenth Circuit Finds Doctor’s Testimony About Whether Hip Stems Were Competing Products Was Admissible Lay Opinion Testimony

February 7, 2024

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

So, when does testimony by a witness not certified as an expert witness violate Rule 701(c) because it is based on scientific, technical, or other specialized knowledge within the scope of Rule 702? It’s a tough question and one that was recently addressed by the Tenth Circuit in its opinion in ORP Surgical, LLC v. Howmedica Osteonics Corp., 2024 WL 439463 (10th Cir. 2024).

The litigation in Howmedica Osteonics arose

from the breakdown of a profitable business relationship [between Stryker and ORP] that ended with a cohort of disgruntled employees jumping ship from one company to the other. At a bench trial, two corporations engaged in the medical-device-sales industry levied claims and crossclaims against each other for breach of their two sales agreements [including the Joint Sales Representative Agreement (JSRA)].

Specifically, Stryker alleged, inter alia,

that ORP breached the JSRA because Stapleford sold competitive products to Stryker’s clients. This failed to convince the district court for two reasons. One, there was no evidence in the record to prove that Stapleford actually sold the product to the hospital. Two, the testimony at trial contradicted Stryker’s claim that the products were competitive with each other.

Stryker call[ed] foul because the JSRA prohibited ORP reps not just from selling competitive products, but also from delivering or distributing them. And Stryker insist[ed] the evidence shows that the product—a hip stem made by another company, Link—was competitive….

At trial, Stryker objected to the admission of testimony from one of ORP’s witnesses, Dr. Tuttle, on the ground that the testimony was undisclosed expert opinion. ORP countered that Dr. Tuttle was simply testifying to “what he does for a living” and maintained that the court could hear his testimony as a lay witness.

On appeal, Stryker raised this issue again, but the Tenth Circuit ruled against it, concluding as follows:

Dr. Tuttle testified that he did not consider Stryker’s hip stem and Link’s hip stem to be competing products. He expressed this opinion based on his experience as an orthopedic surgeon. He recounted one incident when using Stryker’s product “basically ruined [a] patient’s life for a year” because the hip stem caused a fracture that became infected….Dr. Tuttle also explained that, though he prefers Link’s hip stem, he knows other surgeons who prefer different products.

Dr. Tuttle’s testimony is a close call. But we cannot say that the district court abused its discretion, especially given the “greater leeway” we give the court to make evidentiary rulings in a bench trial….

Dr. Tuttle’s opinion that the Stryker and Link hip stems were not competitive was rationally based on his perception that Stryker’s product harmed patients in certain scenarios. See Fed. R. Evid. 701(a). Dr. Tuttle testified that some surgeries may require different hip stems based on the patient’s needs and that surgeons may hold preferences between ostensibly similar devices, which helped the court determine that Stryker’s and Link’s hip stems were not interchangeable and thus not competitive. See Fed. R. Evid. 701(b). And Dr. Tuttle’s opinion did not rely on a technical understanding of each device’s mechanics, but rather reflected his personal frustrations with Stryker’s product. See Fed. R. Evid. 701(c). So, as with the accountant’s testimony in Ryan Dev. Co., Dr. Tuttle’s testimony pulled from basic observations about patients’ individual needs and his personal experiences in the operating room. See 711 F.3d at 1170; see also James River, 658 F.3d at 1214 (noting that lay opinion covers common observations).

Due respect to the Tenth Circuit, but I don’t agree with its conclusion here. I don’t see how Dr. Tuttle’s observations to how patients responded to hip stems can be described as “basic” as opposed to observations that required scientific, technical, or other specialized knowledge. As such, I think that Dr. Tuttle had to be certified as an expert witness.

-CM