A federal appeals court has seconded a lower court's decision to dismiss a pain pump injury lawsuit on grounds of insufficient evidence.

Douglas C. Kilpatrick, a shoulder surgery patient, sued medical device manufacturer Breg Inc., claiming that its local anesthesia infusion pump, which he'd been prescribed post-operatively, resulted in joint pain and permanent damage.

The U.S. District Court for the Southern District of Florida dismissed the case after ruling that the testimony of Mr. Kilpatrick's only expert witness did not reliably prove that the pain pump was the cause of his injury. Last week, the U.S. Court of Appeals for the 11th Circuit in Atlanta agreed with the lower court's findings.

The case stems from an October 2004 surgery on Mr. Kilpatrick's right shoulder. After the arthroscopic repair of a torn labrum, a pain pump catheter was implanted into the joint, where it dispensed 120cc of 0.5% bupivacaine over the next 48 hours, according to court records. Mr. Kilpatrick, then 35, returned to work but reported increasing pain and decreasing mobility in the joint over the next 2 years. In October 2006, he was diagnosed with glenohumeral chondrolysis. This cartilage damage necessitated a total joint replacement in the affected shoulder, which he underwent the following month.

Mr. Kilpatrick filed suit against Vista, Calif.-based Breg in July 2008, alleging liability for a defective product, negligence and deceptive and unfair trade practices. He retained Gary G. Poehling, MD, a board-certified orthopedic surgeon, author and professor from Winston-Salem, N.C., to testify on the link between pain pumps' delivery of local anesthesia directly to the joint and cartilage breakdown, as well as the link between the use of the Breg pump and his injury.

In June 2009, however, during the course of the trial, Breg requested that the court exclude Dr. Poehling's testimony from evidence, arguing that it hadn't convincingly shown the pump caused the injury. The court granted the request and, since Dr. Poehling was Mr. Kilpatrick's sole expert witness on the cause of the injury, dismissed the case.

While the court noted that Dr. Poehling was qualified to testify as an expert, it cast doubt on the scientific reliability of the conclusions he reached in his testimony. In particular, the medical literature he cited did not include studies showing, and failed to demonstrate, a decisive link between pain pumps or bupivacaine and cartilage damage. Plus, his explanation of the injury's cause was limited to the fact that it had followed the use of the pain pump.

Re-examining the case, appeals judges found that decision sound. "The district court conducted an exhaustive and thorough review of the evidence Kilpatrick submitted to support causation, and concluded that his expert witness did not employ a reliable methodology to support his conclusions," they wrote. "This court has carefully reviewed the same evidence and finds that the district court did not abuse its broad judicial discretion in so holding."

David Bernard

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