Foster et al v. Ethicon, Inc. et al

Filing 130

ORDER granting 117 Motion to Strike Defendants' Non-retained Experts in Violation of Pretrial Order #303. Signed by Chief Judge Roberto A. Lange on 10/5/21. (SKK)

Case 4:20-cv-04076-RAL Document 130 Filed 10/05/21 Page 1 of 2 PageID #: 18478

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MARSHA FOSTER, ALVIN A. JENSEN,

4:20-CV-04076-RAL

Plaintiffs,
ORDER GRANTING MOTION TO STRIKE

ETHICON,INC., and
JOHNSON & JOHNSON,
Defendants.

This case began in the Southern District of West Virginia as part ofthe Ethicon multidistrict
litigation(MDL). It is one ofthousands ofcases involving injuries patients allegedly suffered after
being implanted with pelvic mesh products designed, manufactured, and sold by Ethicon, Inc., a
wholly owned subsidiary ofJohnson & Johnson. The Ethicon MDL was assigned to the Honorable

Joseph R. Goodwin in the Southern District of West Virginia. In re: Am. Med. Svs.. Inc. Pelvic

Repair Svs. Prods. Liab. Litig.. 844 F. Supp. 2d 1359, 1362 (J.P.M.L. 2012). Judge Goodwin
assigned the cases in the Ethicon MDL to various "waves" to be prepared for trial. Doc. 6. The

case brought by Plaintiffs Marsha Foster and Alvin Jensen' was assigned to Wave 8. Doc. 6.
In every wave of the Ethicon MDL, Judge Goodwin entered a pretrial order limiting the,

parties to five expert witnesses each. Doc. 118-5 at 3. The pretrial order in Wave 8 read as follows:
The parties may conduct general and specific expert discovery on
all products at issue in Ethicon Wave 8 cases. In light of the
products involved in Ethicon Wave 8 cases, the likelihood of

'Alvin Jensen is a plaintiff for purposes of a loss of consortium claim only, so this opinion and
order generally refers to the Plaintiffs as "Foster."

Case 4:20-cv-04076-RAL Document 130 Filed 10/05/21 Page 2 of 2 PageID #: 18479

overlap in expert opinion from one ease to another (except as to

specific causation) and the need to streamline discovery in these
cases, the plaintiffs and each defendant are limited to no more
than five experts per case (exclusive of treating physicians).

Doc.9 at 4-5. Contrary to this pretrial order, Ethicon disclosed five retained experts and sixteen
"non-retained experts." Docs. 118-3, 118-4.

Foster now moves to strike Ethicon's non-retained experts, arguing that they exceed the

five-expert limit. Doc. 117. Judge Goodwin, district courts within the Eighth Circuit, and this
Court in another case from the Ethicon MDL have rejected Ethicon's attempts to exceed the five-

expert limit. See Sluis v. Ethicon. Inc., 4:20-CV-04165-RAL,, at *13 (D.S.D. Mar. 26, 2021);
Weemannv.Ethicon. Inc..4:20-CV-00704 JAR,2020 WL 5960923,at *6(E.D. Mo. Oct. 8,2020)

(granting the plaintiffs motion to strike Ethicon's experts that exeeeded the five-expert limit and
explaining that Judge Goodwin "uniformly enforeed" this limit); Kellv v. Ethicon. Inc.. No. 20CV-2036-CJW-MAR, 2020 WL 5949225, at *3-4 (N.D. Iowa Oct. 7, 2020)(striking Ethicon's

experts that exceeded the five-expert limit). This Court grants Foster's motion to the extent that
Ethicon may have only five expert witnesses, but this does not preclude Ethieon from calling

employees or former employees with scientific training and backgrounds to refute, for instance,
negligence or punitive damage claims.
For the reasons stated above, it is hereby

ORDERED that Plaintiffs' Motion to Strike Defendants' Non-Retained Experts, Doc. 117,

is granted to the extent explained herein.
DATED this 5th day of October, 2021.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE