The Farrar & Ball trial team earned an important Fifth Circuit appellate victory this week, prevailing in a ruling that allows a medical product liability claim to continue, prompting Texas Lawyer newspaper to name Farrar & Ball cofounder Kyle Farrar its “Appellate Lawyer of the Week.”
Writes Texas Lawyer:
David Carlson was allegedly burned so badly by an infrared medical treatment device that it caused him to have part of his leg and foot amputated. He also lost his products liability case before a Houston federal jury after the defense presented one expert witness—the chiropractor who thought the treatment was a good idea.
But Kyle Farrar recently convinced the U.S. Fifth Circuit Court of Appeals that the chiropractor was not qualified to give expert testimony in the case, reversing and remanding the case back to the trial court for further consideration.
According to the lawsuit, Carlson sought treatment from chiropractor Lance Durrett after he started losing nerve sensation in his feet in 2010. Durrett recommended using the ProNeuro infrared therapy device to treat Carlson’s diabetic condition, called peripheral neuropathy. The device claims to use infrared light to heat up the affected area to increase the amount of nitrous oxide, dilating blood vessels and allowing for more circulation.
But after treatment from the ProNeuro device, Carlson discovered ulcers on the bottom of his heels within 48 hours, which his diabetic podiatrist determined were “burn eschar.” The burns ultimately caused a bone infection, leading to a below-the-knee amputation on one leg and a heel amputation on the opposite foot.
Carlson and his wife sued the device’s manufacturer and distributor in 2012, alleging the ProNeuro device was defectively designed and marketed. The couple sought to exclude testimony provided by Durrett — the only witness for the defense — before trial, but a Texas federal judge denied the motion without explanation, triggering the appeal
“He has a guy that’s patently not qualified to have a medical opinion say his damages were diabetic ulcers and not burns. I don’t know that the defendants could have found a qualified doctor to say what this guy had was diabetic ulcers and not burns. It didn’t make any sense,” Farrar told Texas Lawyer. “What the Fifth Circuit is saying is look, the chiropractor can testify to things that are skeletal or muscular in nature. But burn and wound care, issues like that, are way outside of their scope—or neuropathy, or diabetes.”
The lawsuit is now remanded back to the trial court, and the Farrar & Ball trial team is looking forward to the opportunity to present evidence to a new jury. The case is Carlson v. Bioremedi Therapeuctic Systems NO. 14-20691.