Judge Drastically Cuts Expert Testimony in Body-Parts Suit

Expert testimony on disease transmission proffered by plaintiffs is excluded
A federal judge in New Jersey dealt a setback to the plaintiffs in multidistrict litigation over human tissue stolen from corpses for use in transplants. The judge on Wednesday granted a defense motion under Daubert to exclude expert testimony on whether the tissue could have transmitted HIV, syphilis, cancer and other diseases. The judge also granted summary judgment for the defense on some causation issues, but held off on ruling on the plaintiffs' Daubert challenge of some defense experts.

Mary Pat Gallagher

New Jersey Law Journal

2008-10-24 12:00:00 AM

A federal judge in Newark, N.J., has dealt a setback to the plaintiffs in multidistrict litigation over human tissue pilfered from corpses for use in transplants, drastically curtailing the scope of the plaintiffs' expert testimony.

U.S. District Judge William Martini Jr. on Wednesday granted a defense motion to exclude testimony on whether the tissue could have transmitted HIV, syphilis, cancer and other diseases.

Martini found the proffered testimony did not meet the Daubert standard for admissibility, which is meant to keep out unreliable evidence.

Martini also granted summary judgment for the defense on the issues of whether plaintiffs could have developed mad cow disease from transplanted bone tissue or other diseases from bone tissue implanted after being stored at room temperature for 30 days or longer, finding no reliable evidence of causation.

Martini postponed decision on the plaintiffs' summary judgment motion concerning the transmissibility of diseases from tissue that was frozen or was transplanted within 30 days.

He also held off deciding the plaintiffs' motion to exclude some of the defendants' experts under Daubert .

The multidistrict case, In re Human Tissue Products Liability Litigation, 06-Civ.-135, MDL No. 1763, encompasses hundreds of actions filed around the country by or on behalf of people who received bones, skin, ligaments and other tissue illegally removed from cadavers. The litigation was consolidated in New Jersey in June 2006.

The body parts, removed from corpses at funeral homes in New Jersey, New York and Pennsylvania, were sold by Biomedical Tissue Services of Fort Lee, N.J., to tissue banks across the country, without screening for disease or the consent of the families. The plaintiffs are people who received implanted tissue and relatives of those whose corpses were desecrated.

The defendants include Biomedical, its owner Michael Mastromarino, tissue companies that traded in the stolen tissue, funeral homes where the tissue was harvested and hospitals where it was implanted in patients.

Mastromarino has pleaded guilty to the scheme in New York and Pennsylvania. In June, he received a sentence of 18 to 54 years in New York.

He was sentenced in Philadelphia on Wednesday to 25 to 58 years, to be served concurrently with the New York sentence.