Thaman et al v. Ethicon, Inc.

Filing 132

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Brian N. Schwartz, M.D.) The court DENIES in part, GRANTS in part, and RESERVES in part the Motion filed in MDL 2327 by Certain Plaintiffs in Wave 1 Cases to Exclude Certain Opinions and Testimony of Brian N. Schwartz, M.D., as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 8/30/2016. (cc: attys; any unrepresented party) (REF: MDL 2327; Cases Listed on Exhibit) (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE:

ETHICON, INC.
PELVIC REPAIR SYSTEMS
PRODUCT LIABILITY LITIGATION
MDL No. 2327
______________________________________________________________________________
THIS DOCUMENT RELATES TO:
Cases Identified in the Exhibit
Attached Hereto
MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Brian N. Schwartz, M.D.)
Pending before the court is the Motion to Exclude Certain Opinions and
Testimony of Brian N. Schwartz, M.D. [ECF No. 2089] filed by the plaintiffs. The
Motion is now ripe for consideration because briefing is complete.
I.

Background

This case resides in one of seven MDLs assigned to me by the Judicial Panel
on Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat
pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven
MDLs, there are more than 75,000 cases currently pending, approximately 30,000 of
which are in this MDL, which involves defendants Johnson & Johnson and Ethicon,
Inc. (collectively “Ethicon”), among others.
In this MDL, the court’s tasks include “resolv[ing] pretrial issues in a timely
and expeditious manner” and “resolv[ing] important evidentiary disputes.” Barbara

J. Rothstein & Catherine R. Borden, Fed. Judicial Ctr., Managing Multidistrict

Litigation in Products Liability Cases 3 (2011). To handle motions to exclude or to
limit expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the court developed a specific procedure. In Pretrial Order
(“PTO”) No. 217, the court instructed the parties to file only one Daubert motion per
challenged expert, to file each motion in the main MDL—as opposed to the individual
member cases—and to identify which cases would be affected by the motion. PTO No.
217, at 4.1
II.

Preliminary Matters

Before plunging into the heart of the Motion, a few preliminary matters need
to be addressed.
I am compelled to comment on the parties’ misuse of my previous Daubert
rulings on several of the experts offered in this case. See generally Sanchez v. Bos.

Sci. Corp., No. 2:12-cv-05762, 2014 WL 4851989 (S.D. W. Va. Sept. 29, 2014); Tyree
v. Bos. Sci. Corp., 54 F. Supp. 3d 501 (S.D. W. Va. 2014); Eghnayem v. Bos. Sci. Corp.,
57 F. Supp. 3d 658 (S.D. W. Va. 2014). The parties have, for the most part, structured
their Daubert arguments as a response to these prior rulings, rather than an
autonomous challenge to or defense of expert testimony based on its reliability and
relevance. In other words, the parties have comparatively examined expert testimony

The plaintiffs identified the Wave 1 cases affected by this Motion in their attached Exhibit A [ECF
No. 2089-1], which the court has attached to this Memorandum Opinion and Order. At the time of
transfer or remand, the parties will be required to designate relevant pleadings from MDL 2327,
including the motion, supporting memorandum, response, reply, and exhibits referenced herein.
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and have largely overlooked Daubert’s core considerations for assessing expert
testimony. Although I recognize the tendency of my prior evidentiary determinations
to influence subsequent motions practice, counsels’ expectations that I align with
these previous rulings when faced with a different record are misplaced, especially
when an expert has issued new reports and given additional deposition testimony.
Mindful of my role as gatekeeper for the admission of expert testimony, as well
as my duty to “respect[ ] the individuality” of each MDL case, see In re

Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 2006), I refuse
to credit Daubert arguments that simply react to the court’s rulings in Sanchez and
its progeny. Indeed, I feel bound by these earlier cases only to the extent that the
expert testimony and Daubert objections presented to the court then are identical to
those presented now. Otherwise, I assess the parties’ Daubert arguments anew. That
is, in light of the particular expert testimony and objections currently before me, I
assess “whether the reasoning or methodology underlying the testimony is
scientifically valid” and “whether that reasoning or methodology properly can be
applied to the facts in issue.” Daubert, 509 U.S. at 592–93. Any departure from

Sanchez, Eghnayem, or Tyree does not constitute a “reversal” of these decisions and
is instead the expected result of the parties’ submission of updated expert reports and
new objections to the expert testimony contained therein.
Finally, I have attempted to resolve all possible disputes before transfer or
remand, including those related to the admissibility of expert testimony pursuant to
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Daubert. Nevertheless, in some instances I face Daubert challenges where my
interest in accuracy counsels reserving ruling until the reliability of the expert
testimony may be evaluated at trial. At trial, the expert testimony will be tested by
precise questions asked and answered. The alternative of live Daubert hearings is
impossible before transfer or remand because of the numerosity of such motions in
these seven related MDLs. As these MDLs have grown and the expert testimony has
multiplied, I have become convinced that the critical gatekeeping function permitting
or denying expert testimony on decisive issues in these cases is best made with a live
expert on the witness stand subject to vigorous examination.
In the course of examining a multitude of these very similar cases involving
the same fields of expertise, I have faced irreconcilably divergent expert testimony
offered by witnesses with impeccable credentials, suggesting, to me, an unreasonable
risk of unreliability. The danger—and to my jaded eye, the near certainty—of the
admission of “junk science” looms large in this mass litigation.
The parties regularly present out-of-context statements, after-the-fact
rationalizations of expert testimony, and incomplete deposition transcripts. This,
combined with the above-described practice of recycling expert testimony, objections,
and the court’s prior rulings, creates the perfect storm of obfuscation. Where further
clarity is necessary, I believe it can only be achieved through live witness testimony—
not briefing—I will therefore reserve ruling until expert testimony can be evaluated
firsthand.
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III.

Legal Standard

By now, the parties should be intimately familiar with Rule 702 of the Federal
Rules of Evidence and Daubert, so the court will not linger for long on these
standards.
Expert testimony is admissible if the expert is qualified and if his or her expert
testimony is reliable and relevant. Fed. R. Evid. 702; see also Daubert, 509 U.S. at
597. An expert may be qualified to offer expert testimony based on his or her
“knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Reliability
may turn on the consideration of several factors:
(1) whether a theory or technique can be or has been tested;
(2) whether it has been subjected to peer review and
publication; (3) whether a technique has a high known or
potential rate of error and whether there are standards
controlling its operation; and (4) whether the theory or
technique enjoys general acceptance within a relevant
scientific community.

Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert,
509 U.S. at 592–94). But these factors are neither necessary to nor determinative of
reliability in all cases; the inquiry is flexible and puts “principles and methodology”
above conclusions and outcomes. Daubert, 509 U.S. at 595; see also Kumho Tire Co.

v. Carmichael, 525 U.S. 137, 141, 150 (1999). Finally, and simply, relevance turns on
whether the expert testimony relates to any issues in the case. See, e.g., Daubert, 509
U.S. at 591–92 (discussing relevance and helpfulness).
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At bottom, the court has broad discretion to determine whether expert
testimony should be admitted or excluded. Cooper, 259 F.3d at 200.
IV.

Discussion

Dr. Schwartz is a practicing, board-certified urologist in Lee County, Florida.
He has performed over 600 surgical implantations of synthetic mesh slings.
a. Safety and Efficacy
The plaintiffs challenge the reliability of Dr. Schwartz’s expert testimony about
safety and efficacy by pointing out that Dr. Schwartz ignored various studies. An
expert’s failure to account for contrary scientific literature and choice to engage in a
selective review of medical literature may render his or her opinion unreliable. E.g.,

In re Rezulin Prods. Liab. Litig., 369 F. Supp. 2d 398, 425 (S.D.N.Y. 2005). But this
is not the case here. During his deposition or in his report, Dr. Schwartz explained
why he did not rely on or discounted the studies the plaintiffs claim he should have
reviewed or he actually cited the source. While the plaintiffs remain free to crossexamine Dr. Schwartz on this point, their Motion is DENIED on this point.
b. Properties
The plaintiffs seek exclusion of Dr. Schwartz’s opinions about the material
properties of mesh, including testimony related to the cut of mesh (i.e., mechanical or
laser), fraying, curling, roping, pore size, density, degradation, shrinkage, and
contracture. The arguments advanced in favor of exclusion are similar across these
phenomena, so I treat them here together.
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First, the plaintiffs argue that Dr. Schwartz is unqualified because he is not
trained as a polymer scientist, is not trained as a medical device engineer, is not a
pathologist, and has not analyzed explanted mesh under a microscope. I find this
argument without merit. Dr. Schwartz is a board-certified urologist who has
performed hundreds of procedures implanting synthetic midurethral slings in
addition to thirty revisions or excisions of the same. This clinical experience,
combined with a review of peer-reviewed scientific literature, qualifies Dr. Schwartz
to opine on mesh’s reaction to and effect on the human body. The plaintiffs’ Motion is
DENIED on this matter.

Second, the plaintiffs challenge the reliability of Dr. Schwartz’s opinions
because he has not employed an appropriate methodology. Dr. Schwartz’s opinions
on the physical properties of mesh are based on his personal experience, in which he
did not observe clinically significant evidence of the particular mesh phenomena, and
his review of the relevant literature. In the abstract, these are reasonable bases on
which to form an expert opinion. See Kumho, 526 U.S. at 156 (“[N]o one denies that
an expert might draw a conclusion from a set of observations based on extensive and
specialized experience.”).
However, the court does not have enough information to judge the reliability
or helpfulness of these particular clinical observations. See Fed. R. Evid. 702 advisory
committee’s note to 2000 amendment (“If the witness is relying solely or primarily on
experience, then the witness must explain how that experience leads to the conclusion
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reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.”). Perhaps Dr. Schwarz did not observe
evidence of degradation because he was not looking. Or perhaps his method of
identifying and tracking mesh contraction is not scientifically sound. Additionally,
although the expert report indicates Dr. Schwartz reviewed a list of literature in
forming his opinions generally, the court is directed to minimal specific support for
the statements at issue or detail about Dr. Schwartz’s methodology.
I am without sufficient information at this time to draw the fine line between
reliable and unreliable expert testimony based primarily on a doctor’s clinical
experiences not observing something. Accordingly, I RESERVE ruling until further
testimony may be offered and evaluated firsthand at trial.
c. Design
The plaintiffs claim Dr. Schwartz is not qualified to offer what they
characterize as design opinions. But they do not explain or identify these opinions
with sufficient specificity. This most recent wave of Daubert motions in this MDL is
plagued with some confusion about what constitutes a design opinion. So some
clarification is necessary before proceeding.
At first glance, it seems the plaintiffs want to prevent Dr. Schwartz from
providing any opinions that even mention the word “design.” But the mere utterance
of a single word is not an incantation that transforms an opinion about one thing into
something else.
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A close, contextual reading of the transvaginal mesh cases where this issue has
been raised before reveals the heart of the plaintiffs’ objections. In this motion—and
several others—the plaintiffs argue that the expert at issue lacks the particularized
skill, knowledge, experience, education, or training that is necessary to provide
opinions about the process of designing a product. Opinions of this sort include, for
example, opinions about pre-marketing product testing and product development.
But upon review, I find Dr. Schwartz has not expressed any opinions about the
process of designing a product. So the plaintiffs’ Motion is DENIED as moot on this
very limited issue.
d. Warnings
The plaintiffs claim Dr. Schwartz is not qualified to offer expert testimony
about product warnings, which includes expert testimony about the adequacy of the
relevant Instructions for Use (“IFU”). According to the plaintiffs, Dr. Schwartz is not
an expert in the development of warnings labels and thus is not qualified to offer
expert testimony about warnings. While an expert who is a urologist may testify
about the specific risks of implanting mesh and whether those risks appeared on the
relevant IFU, the same expert must possess additional expertise to offer expert
testimony about what information should or should not be included in an IFU. Wise

v. C. R. Bard, Inc., No. 2:12-cv-1378, 2015 WL 521202, at *14 (S.D. W. Va. Feb. 7,
2015). Dr. Schwartz does not possess the additional expertise to offer expert
testimony about what an IFU should or should not include. Accordingly, Dr.
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Schwartz’s expert testimony about these matters is EXCLUDED.
e. Professional Education Program
The plaintiffs challenge Dr. Schwartz’s deposition opinion that he had a
“positive experience” with Ethicon’s training program. Dr. Schwartz does not offer
this opinion in his expert report, presumably because he does not intend to offer it at
trial. Even so, such opinions are not the proper subject of a Daubert motion.
Accordingly, the plaintiffs’ Motion is DENIED on this point.
V.

Recurring Issues

Many of the Daubert motions filed in this MDL raise the same or similar
objections.
One particular issue has been a staple in this litigation, so I find it best to
discuss it in connection with every expert. A number of the Daubert motions seek to
exclude FDA testimony and other regulatory or industry standards testimony. To the
extent this Motion raises these issues it is GRANTED in part and RESERVED in
part as described below.
I have repeatedly excluded evidence regarding the FDA’s section 510(k)
clearance process in these MDLs, and will continue to do so in these cases, a position
that has been affirmed by the Fourth Circuit. In re C. R. Bard, Inc., 81 F.3d 913,
921–23 (4th Cir. 2016) (upholding the determination that the probative value of
evidence related to section 510(k) was substantially outweighed by its possible
prejudicial impact under Rule 403). Because the section 510(k) clearance process does
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not speak directly to safety and efficacy, it is of negligible probative value. See In re

C. R. Bard, 81 F.3d at 920 (“[T]he clear weight of persuasive and controlling authority
favors a finding that the 510(k) procedure is of little or no evidentiary value.”).
Delving into complex and lengthy testimony about regulatory compliance could
inflate the perceived importance of compliance and lead jurors “to erroneously
conclude that regulatory compliance proved safety.” Id. at 922. Accordingly, expert
testimony related to the section 510(k) process, including subsequent enforcement
actions and discussion of the information Ethicon did or did not submit in its section
510(k) application, is EXCLUDED. For the same reasons, opinions about Ethicon’s
compliance with or violation of the FDA’s labeling and adverse event reporting
regulations are EXCLUDED. In addition to representing inappropriate legal
conclusions, such testimony is not helpful to the jury in determining the facts at issue
in these cases and runs the risk of misleading the jury and confusing the issues.
Insofar as this Motion challenges the FDA-related testimony discussed here, the
Motion is GRANTED.
A number of experts also seek to opine on Ethicon’s compliance with design
control and risk management standards. Some of this testimony involves the FDA’s
quality systems regulations, and some—likely in an attempt to sidestep my
anticipated prohibition on FDA testimony—involve foreign regulations and
international standards. I find all of this proposed testimony of dubious relevance.
Although these standards relate to how a manufacturer should structure and
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document risk assessment, the standards do not appear to mandate any particular
design feature or prescribe the actual balance that must be struck in weighing a
product’s risk and utility. Nor is it clear that the European and other international
standards discussed had any bearing on the U.S. medical device industry when the
device in question was being designed.
Nevertheless, because the nuances of products liability law vary by state, I will
refrain from issuing a blanket exclusion on design process and control standards
testimony, whether rooted in the FDA or otherwise. Each standard must be assessed
for its applicability to the safety questions at issue in this litigation, consistent with
state law. I am without sufficient information to make these findings at this time.
Accordingly, I RESERVE ruling on such matters until a hearing, where the trial
judge will have additional context to carefully evaluate the relevance and potential
prejudicial impact of specific testimony.
Similarly, I doubt the relevance of testimony on the adequacy of Ethicon’s
clinical testing and research, physician outreach, or particular product development
procedures and assessments otherwise not encompassed by the above discussion.
Again, such matters seem to say very little about the state of the product itself (i.e.,
whether or not it was defective) when it went on the market. But because the scope
of relevant testimony may vary according to differences in state products liability law,
I RESERVE ruling on such matters until they may be evaluated in proper context at
a hearing before the trial court before or at trial.
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Additional—and more broad—matters also warrant mention. While some of
these concerns may not apply to this particular expert, these concerns are raised so
frequently that they are worth discussing here.

First, many of the motions seek to exclude state-of-mind and legal-conclusion
expert testimony. Throughout these MDLs, the court has prohibited the parties from
using experts to usurp the jury’s fact-finding function by allowing testimony of this
type, and I do the same here. E.g., In re C. R. Bard, Inc., 948 F. Supp. 2d 589, 611
(S.D. W. Va. 2013); see also, e.g., United States v. McIver, 470 F.3d 550, 562 (4th Cir.
2006) (“[O]pinion testimony that states a legal standard or draws a legal conclusion
by applying law to the facts is generally inadmissible.”); In re Rezulin Prods. Liab.

Litig., 309 F. Supp. 2d 531, 546 (S.D.N.Y. 2004) (“Inferences about the intent and
motive of parties or others lie outside the bounds of expert testimony.”). Additionally,
an expert may not offer expert testimony using “legal terms of art,” such as
“defective,” “unreasonably dangerous,” or “proximate cause.” See Perez v. Townsend

Eng’g Co., 562 F. Supp. 2d 647, 652 (M.D. Pa. 2008).
Second, and on a related note, many of the motions seek to prohibit an expert
from parroting facts found in corporate documents and the like. I caution the parties
against introducing corporate evidence through expert witnesses. Although an expert
may testify about his review of internal corporate documents solely for the purpose
of explaining the basis for his or her expert opinions—assuming the expert opinions
are otherwise admissible—he or she may not offer testimony that is solely a conduit
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for corporate information.

Third, many of the motions also ask the court to require an expert to offer
testimony consistent with that expert’s deposition or report or the like. The court will
not force an expert to testify one way or another. To the extent an expert offers
inconsistent testimony, the matter is more appropriately handled via crossexamination or impeachment as appropriate and as provided by the Federal Rules of
Evidence.

Fourth, in these Daubert motions, the parties have addressed tertiary
evidentiary matters like whether certain statements should be excluded as hearsay.
The court will not exclude an expert simply because a statement he or she discussed
may constitute hearsay. Cf. Daubert, 509 U.S. at 595. Hearsay objections are more
appropriately raised at trial.

Finally, in some of the Daubert motions, without identifying the expert
testimony to be excluded, the parties ask the court to prevent experts from offering
other expert testimony that the moving party claims the expert is not qualified to
offer. I will not make speculative or advisory rulings. I decline to exclude testimony
where the party seeking exclusion does not provide specific content or context.
VI.

Conclusion

The court DENIES in part, GRANTS in part, and RESERVES in part the
Motion to Exclude Certain Opinions and Testimony of Brian N. Schwartz, M.D. [ECF
No. 2089].
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The court DIRECTS the Clerk to file a copy of this Memorandum Opinion and
Order in 2:12-md-2327 and in the Ethicon Wave 1 cases identified in the Exhibit
attached hereto.

ENTER: August 30, 2016

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Exhibit A

EXHIBIT A - Schwartz
THIS DOCUMENT RELATES TO PLAINTIFFS:
Wendy Hagans v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00783
Susan Thaman (Reeves) v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00279