Carter et al v. Johnson & Johnson et al
Filing
163
ORDER Granting in Part and Denying in Part 86 Motion to Exclude Case-Specific Opinions of Paul Michaels, M.D. Signed by Judge Kent J. Dawson on 3/31/2021. (Copies have been distributed pursuant to the NEF - DRS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TAMARA CARTER et al.,
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Plaintiffs,
ORDER
v.
ETHICON, INC. et al.,
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Case No. 2:20-cv-01232-KJD-VCF
Defendants.
Before the Court is Defendants’ Motion to Exclude Case-specific Opinions of Paul
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Michaels, M.D. (ECF #86). Plaintiffs filed a response in opposition (ECF #94) to which
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Defendants replied (#97).
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I.
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Rule 702 of the Federal Rules of Evidence governs the admissibility of expert opinion.
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Legal Standard
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As explained in the case law, expert opinion is admissible if
“(1) the witness is sufficiently qualified as an expert by knowledge, skill,
experience, training, or education; (2) the scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue; (3) the testimony is based on sufficient fact or data; (4) the testimony
is the product of reliable principles and methods; and (5) the expert has reliably
applied the relevant principles and methods to the facts of the case.”
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City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). A district court’s
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inquiry into admissibility is a flexible one and the trial court is a gatekeeper, not a fact finder. Id.
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(citations omitted). When an expert “meets the threshold established by Rule 702 as explained in
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Daubert, the expert may testify and the jury decides how much weight to give that testimony.”
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Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010).
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Expert testimony must be relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597 (1993). The testimony is relevant “if the knowledge underlying it has a
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valid connection to the pertinent inquiry” and it is reliable if “the knowledge underlying it has a
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reliable basis in the knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at
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565. Judges are “supposed to screen the jury from unreliable nonsense opinions, but not exclude
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opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Group,
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Inc., 738 F.3d 960, 969 (9th Cir. 2013). “Shaky but admissible evidence is to be attacked by
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cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
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Primiano, 598 F.3d at 564. District courts are not tasked with “deciding whether the expert is
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right or wrong, just whether his testimony has substance such that it would be helpful to a jury.”
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Alaska Rent-A-Car, 738 F.3d at 969–70. The trial court “has discretion to decide how to test an
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expert’s reliability as well as whether the testimony is reliable.” Primiano, 598 F.3d at 564
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II.
Analysis
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Defendants move to exclude the case-specific opinion testimony of expert Paul Michaels,
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M.D. that relates to his examination of a specimen slide from Tamara Carter which was taken
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from an explanted Prolift device. The opinion concludes that the symptoms and pain Carter
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experiences is caused by the “TVT/Prolift” device. However, the TVT device had been removed
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in a previous surgery. Thus, the slide only contains material from the Prolift device. Therefore,
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Michaels’ testimony is only reliable as it relates to a Prolift device. To the extent that Plaintiffs
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argue that there was evidence of migration, Plaintiffs have failed to cite any specific testimony or
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evidence that connects the specimen slide examined by Dr. Michaels with the TVT device.
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Accordingly, the Court must exclude Michaels from testifying that TVT, specifically, caused the
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inflammation seen in Carter’s specimen slides. See Huskey v. Ethicon, Inc., 29 F.Supp.3d 691,
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708 (S.D. W. Va. 2014) (“This result does not, as the plaintiffs suggest, unfairly punish them for
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a missing piece of evidence over which they had no control. Rule 702 and Daubert are clear that
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an expert's testimony must be based on “reliable principles and methods.” Fed.R.Evid. 702. That
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is not present here.).
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III.
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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Exclude
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Case-specific Opinions of Paul Michaels, M.D. (ECF #86) is GRANTED IN PART
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AND DENIED IN PART.
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Conclusion
Dated this 31st day of March, 2021.
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_____________________________
Kent J. Dawson
United States District Judge
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