Hammock et al v. Mentor Worldwide LLC et al

Filing 137

ORDER: Defendant Coloplast Corp.'s 135 MOTION for Reconsideration is DENIED. On or before 8/8/2022, Plaintiff's counsel shall provide Judge Daly's chambers with dates for which Dr. El-Zawahry is available for an evidentiary hearing. Signed by Magistrate Judge Reona J. Daly on 8/1/2022. (lmo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROWENA MARIE HAMMOCK,
Plaintiff,
v.
MENTOR WORLDWIDE, LLC and
COLOPLAST CORP.,
Defendants.

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Case No. 19-cv-1041- RJD

ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Defendant Coloplast Corp.’s Motion to Reconsider
(Docs. 135 and 136) a prior Order (Doc. 128) on a Motion to Reconsider filed by Plaintiff (Doc.
126). For the third time, the Court is asked to consider in limine whether Dr. Ahmed El-Zawahry,
Plaintiff’s treating physician, can offer certain opinions at trial (Docs. 113, 128).
On April 24, 2006, Plaintiff was implanted with a mesh medical device commonly used to
treat stress urinary incontinence, the Coloplast Aris Trans-Obturator Sling System (the “Aris”).
Dr. El-Zawahry removed Plaintiff’s Aris. The Court granted in part Defendant’s Motion to
Exclude Opinions and Testimony of Dr. El-Zawahry, finding that Plaintiff had not properly
disclosed him as a witness pursuant to Rule 26(a)(2)(B) and finding that his disclosed opinions
regarding specific causation were not made within the course of the treatment he provided her
(Doc. 113, “Order I”).
Dr. El-Zawahry was never deposed and therefore the Court can only rely upon Plaintiff’s
expert witness disclosures to determine in limine whether his opinions are admissible.
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On

September 5, 2017, Plaintiff served Defendants with a pleading titled “Disclosure of Specific
Causation Expert” for Dr. El-Zawahry:
Dr. El-Zawahry is a treating physician and has not been retained to
provide expert testimony in this case. Therefore, the requirements
of FRCP 26(a)(2)(B) do not apply to this disclosure.
The disclosure requirements for FRCP 26(a)(2)(C) are contained in
the report of Dr. El-Zawahry dated January 30, 2017, attached
hereto.
(Doc. 92-1).
Dr. El-Zawahry’s “report” dated January 30, 2017 is actually a letter to Plaintiff’s counsel
that includes the following statements:
Overall, she had complex problems and it is very difficult to point
at one source of her problems. However, since the removal of [the
Aris] she has had improvement of her groin, some of the pelvic pain,
and pain with intercourse. We can cautiously say that the sling may
have to some extent contributed to these symptoms as these were
masked by other problems she had such as interstitial cystitis and
underactive bladder. These other issues could result in similar
symptoms in patients who did not undergo sling procedures.
To answer your questions:
In my assessment, I believe that the sling has caused her pelvic pain,
the left groin pain, pain with intercourse since these problems have
improved after the sling removal. Also, during examination, her pain
and discomfort around the sling arms are gone.
[Plaintiff] denies completely having any pelvic pain or groin pain
prior to the sling surgery and for this reason we can attribute that
this pain is most likely related to the sling.
(Doc. 92-2).
On February 21, 2019, Plaintiff’s counsel then prepared another document titled “Rule 26
Expert Witness Disclosures” that contained the following:
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….In addition to the opinions contained in the report attached to the
disclosure served on September 5, 2017, it is expected that, after
being provided with a complete medical history of the Plaintiff, Dr.
El-Zawahry will opine, within a reasonable degree of medical
certainty that the following were probably caused by the failure of
the Defendant’s product: pelvic and groin pain, bladder pain….
The February 21, 2019 disclosure goes on to list 13 more conditions “probably” caused by
the Aris. In Order I (and again in the March 16, 2022 Order on Plaintiff’s Motion to Reconsider,
“Order II”), the undersigned found that Dr. El-Zawahry could not testify regarding the 13
additional conditions because Plaintiff’s disclosures reflected that Dr. El-Zawahry did not form
those opinions as he treated Plaintiff (which is required for physicians disclosed as witnesses
pursuant to Federal Rule of Civil Procedure 26(a)(2)(C)). However, in Order II, the Court found
that Dr. El-Zawahry was not barred in limine from testifying that “the [Aris] has caused her pelvic
pain, the left groin pain, pain with intercourse since these problems have improved after the [Aris]
removal. Also, during examination, her pain and discomfort around the [Aris] arms are gone.”
Those statements (written in his January 30, 2017 letter) indicate that Dr. El-Zawahry formed that
opinion regarding Plaintiff’s pain as he treated Plaintiff.
Defendants now ask the Court to reconsider Order II, pointing the Court to other statements
made by Dr. El-Zawahry in his January 30, 2017 letter (e.g., “we can cautiously say that the sling
may have to some extent contributed to these symptoms”). Defendants contend that the Court
ignored these statements in Order II and failed to recognize that Dr. El-Zawahry could not testify
to “mere possibilities” at trial . To the contrary, Order II states as follows:
The Court acknowledges that there are statements in the letter where
Dr. El-Zawahry does not seem convinced of his opinion (e.g., “we
can cautiously say that the sling may have to some extent
contributed to these symptoms”). These statements are why the
Court discounted Dr. El-Zawahry’s specific causation opinions
regarding Plaintiff’s pain in [Order I]. However, Dr. El-Zawahry
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ultimately concludes that Plaintiff’s pain was related to the Aris
based upon his assessment and examination of her and therefore the
Court will not exclude this opinion in limine. Lewis v. Citgo
Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (“a medical
expert’s ultimate opinion must be grounded in the scientific process
and may not be merely a subjective believe or unsupported opinion).
The Court is certainly aware that Dr. El-Zawahry can only give opinions at trial that are
made to a reasonable degree of medical certainty. As previously stated multiple times in Order
II, an order in limine may be revisited at trial. Perry v. City of Chicago, 733 F.3d 248, 252 (7th
Cir. 2013) (citing Luce v. U.S., 469 U.S. 38, 41-42 (1984)). Any unsupported beliefs by Dr. ElZawahry regarding the source of Plaintiff’s pain will not be admissible at trial. According to
Plaintiff’s February 21, 2019 disclosure, Dr. El-Zawahry’s opinions regarding Plaintiff’s pain will
be provided at trial to a reasonable degree of medical certainty. At this point, the Court will not
presume otherwise based on unsworn statements written by Dr. El-Zawahry in the January 30,
2017 letter that he has not had the opportunity to explain.
Had Defendant deposed Dr. El-Zawahry and clarified his level of certainty, the Court (and
the parties) would not be on the third motion on this topic. Defendant points the Court to the
Seventh Circuit’s recent decision in Donaldson v. Johnson & Johnson, another mesh implant case.
Plaintiff Donaldson’s treating physician signed an affidavit in which he gave multiple opinions
regarding the defective nature of the mesh implant and that it caused Plaintiff to experience pelvic
pain and bladder stones. Donaldson v. Johnson & Johnson, 37 F. 4th 400, 403 (7th Cir. 2022).
According to the Affidavit, the opinions were given to a reasonable degree of medical certainty.
Id. However, when the treating physician was deposed, he could not give those key opinions to
a reasonable degree of medical certainty, instead making statements like “[the device in question]
possibly caused the mesh to be eroded into the bladder and caused stones.” Id. at 403-04
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(emphasis added). He did not offer any explanation for the contradictions between his affidavit
and testimony. Id. at 407. The District Court granted summary judgment in favor of Defendant,
striking the affidavit because it was contradicted by testimony and was therefore unreliable. Id.
at 405. The Seventh Circuit affirmed the District Court’s decisions to strike the affidavit and
grant summary judgment to Defendant. Id. at 406-12.
The record before the undersigned, however, contains no deposition testimony or affidavit
from Dr. El-Zawahry. The decision not to depose Dr. El-Zawahry was apparently a strategic
choice made by both parties and at this point, too much ink has been spilled by counsel positing
his testimony. At the status conference scheduled for August 2, 2022, the Court will set this case
for a final pretrial conference and jury trial. However, prior to the final pretrial conference, the
Court will hold an evidentiary hearing at which Plaintiff shall present Dr. El-Zawahry to testify
either in person or via Zoom. Counsel for Plaintiff and Defendant may question Dr. El-Zawahry
on his opinion that “the [Aris] has caused her pelvic pain, the left groin pain, pain with intercourse
since these problems have improved after the [Aris] removal. Also, during examination, her pain
and discomfort around the [Aris] arms are gone.” On or before August 8, 2022, Plaintiff’s counsel
shall provide the undersigned’s chambers with dates on which Dr. El-Zawahry is available for the
hearing.
At this point, however, Defendant has not provided the Court with any sufficient basis to
reconsider the March 16, 2022 Order and therefore Defendant’s Motion to Reconsider (Doc. 135)
is DENIED.

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IT IS SO ORDERED.
DATED: August 1, 2022
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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