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Tompkins v. Medtronic Inc.

filed*fn*: February 10, 1994.


Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-90-00016-HMF. Harold M. Fong, District Judge, Presiding

Before: Alarcon and Fernandez, Circuit Judges, and Wilson, District Judge.*fn*


James Tompkins, as Administrator of the Estate of Colleen Tompkins, filed a products liability action against Medtronic, Inc., alleging that a defect in a pacemaker manufactured by Medtronic resulted in the death of his wife. Tompkins appeals from the judgment entered in favor of Medtronic following a trial by jury. Tompkins seeks reversal on the following grounds: (1) the district court clearly erred*fn1 when it denied Tompkins the opportunity to call Dr. J. Judson McNamara as an expert witness to testify as to the proximate cause of Colleen Tompkins' death; (2) the district court committed manifest error when it denied Tompkins' request to introduce the deposition testimony of Dr. Josefino Aguilar, a forensic pathologist; and (3) the district court erroneously excluded evidence regarding the Medtronic pacemaker lead wire model 6972, which contained defects that Tompkins argued were similar to model 6971, which was implanted in Colleen Tompkins. We affirm because we conclude that the district court did not abuse its discretion with regard to any of the contested evidentiary rulings.


Colleen Tompkins was implanted with a Medtronic pacemaker on May 19, 1982. On January 3, 1988, Colleen Tompkins collapsed and died while still implanted with the pacemaker. Tompkins filed this action against Medtronic in the district court on the basis of diversity jurisdiction. After repeated delays, trial by jury commenced on July 21, 1992. The jury rendered the following special verdict: (1) the pacemaker lead wire was dangerously defective; (2) the defect was not the proximate cause of Mrs. Tompkins' death; (3) Medtronic was negligent in its design, manufacture, marketing, or failure to warn of the pacemaker lead wire model 6971; (4) the negligence of Medtronic was not the proximate cause of Mrs. Tompkins' death. This appeal followed the entry of judgment in favor of Medtronic.


Tompkins contends that the district court clearly erred by denying his motion that Dr. McNamara be allowed to testify as an expert witness. Prior to trial, a magistrate Judge denied as untimely Tompkins' request that Dr. McNamara be added to the expert witness list. The district court affirmed this ruling. We review a district court's ruling to exclude expert testimony for an abuse of discretion. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir. 1993).

Tompkins offered the testimony of Dr. McNamara as an expert witness pursuant to Rule 702 of the Federal Rules of Evidence. Rule 702 provides in pertinent part: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. Tompkins represented to the district court that Dr. McNamara would testify that a malfunction with the lead wire was the proximate cause of Colleen Tompkins' death. Tompkins argued that Dr. McNamara's testimony was required to refute the testimony of Dr. Michael Dang, an expert witness for Medtronic. Dr. Dang opined during his deposition that the Medtronic pacemaker was not the proximate cause of Colleen Tompkins' death.

The trial in this matter was initially scheduled to begin on March 12, 1991. On January 10, 1990, the magistrate Judge held a pretrial conference and ruled that Tompkins was required to disclose the names of all expert witnesses by November 1, 1990. On November 15, 1990, Tompkins submitted a list of four experts. Dr. McNamara was not named as a witness. On October 22, 1991, the magistrate Judge issued an amended scheduling conference order which stated that "any amended Pretrial Statements filed shall not list any witnesses not previously identified in the parties' Pretrial Statements."

Tompkins cites Patterson v. F.W. Woolworth, Co., 786 F.2d 874 (8th Cir. 1986), Messier v. Ass'n of Apartment Owners, 6 Haw. App. 525, 735 P.2d 939 (Hawaii App. 1987), and Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894 (3d Cir. 1977) in support of his contention that the district court erred by excluding the testimony of Dr. McNamara. Our reading of these cases, however, demonstrates that Tompkins' reliance is misplaced.

In Patterson, the plaintiffs filed a wrongful death action after an electric fan they purchased at a Woolworth store caught fire, resulting in the death of five children. Patterson, 786 F.2d at 876. The district court required the parties to file a statement concerning the expected testimony of expert witnesses by September 2, 1983. Id. at 879. The plaintiffs did not give notice that Morris Mericle would testify as an expert witness until November 17, 1983. The plaintiffs did not provide the substance of his testimony to the defendants until January 10, 1984. Id. A defense expert, Emil Bahnmaier, was called at trial despite Woolworth's failure to list him as an expert witness during discovery. Id. The district court permitted Bahnmaier to testify because a third-party defendant had designated Bahnmaier as an expert and because the court permitted the plaintiffs to depose Bahnmaier prior to his testimony. Id. The Eighth Circuit affirmed because the defendant's failure to give timely notice that Bahnmaier would be an expert resulted from the plaintiffs' failure to designate Mericle as his expert witness in accordance with the district court's prior ruling. Id.

On November 29, 1990, Medtronic filed its designation of expert witnesses. Dr. Michael Dang was included on this list. Subsequently, Dr. Dang was listed as an expert witness on Medtronic's pretrial statement, filed on February 14, 1991. Tompkins contends that Medtronic did not disclose Dr. Dang's opinion regarding proximate causation until January 6, 1992, when it filed its third supplemental response to plaintiffs' first request for answers to interrogatories. On April 6, 1992, Tompkins deposed Dr. Dang. During his deposition, Dr. Dang testified that in his opinion the pacemaker was not the immediate cause of death. According to Tompkins, after taking Dr. Dang's deposition, he was "without an expert witness to testify as to causation." We disagree with Tompkins' characterization of his dilemma.

Tompkins was originally scheduled to take Dr. Dang's deposition on January 25, 1991. Dr. Dang was unable to attend. He indicated he would be available to give his deposition on January 28th. Tompkins failed to take Dr. Dang's deposition until April 6, 1992. Tompkins has not provided a satisfactory explanation which would justify his failure to take Dr. Dang's deposition at an earlier date. Tompkins' excuse for his untimeliness in naming Dr. McNamara as an expert witness is particularly troubling given that his attorney knew from the inception of this action that he would be required to demonstrate proximate causation as a prima facie element of his case. Tompkins' attempts to rationalize his belated designation of Dr. McNamara as an expert witness by stating that subsequent to February 20, 1991, two of his expert witnesses on the issue of causation became "unavailable." The record shows that the court issued an order on March 20, 1991, which precluded Tompkins from introducing the deposition testimony of these experts at trial. The court's order did not prevent Tompkins from calling these experts as live witnesses at trial.

In Patterson, the party who sought to introduce the testimony of the expert witness was not responsible for the untimely designation of the expert. In this matter Tompkins was responsible for the ...

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