Shively et al v. Johnson & Johnson et al

Filing 278

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Daniel Elliott, M.D.) The court DENIES in part, GRANTS in part, and RESERVES in part the Motion filed in MDL 2327 to Exclude Certain General Opinions of Daniel Elliott, M.D., as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 8/26/2016. (cc: attys; any unrepresented party) (REF: MDL 2327; Cases Listed on Exhibit) (bdr)

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: Daniel Elliott, M.D.)
Pending before the court is the Motion to Exclude Certain General Opinions of
Daniel Elliott, M.D. [ECF No. 2082] filed by Johnson & Johnson and Ethicon, Inc.
(collectively “Ethicon”). 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.
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
and have largely overlooked Daubert’s core considerations for assessing expert

Ethicon identified the Wave 1 cases affected by this Motion in its attached Exhibit A [ECF No. 20821], 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.
1

2

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

Daubert. Nevertheless, in some instances I face Daubert challenges where my
interest in accuracy counsels reserving ruling until the reliability of the expert

3

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.
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

4

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).
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. Elliott is a urogynecologist and an associate professor of urology at the
Mayo School of Graduate Medical Education.

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a. MSDS
Ethicon seeks to preclude Dr. Elliott from using the MSDS—specifically the
MSDS statement that polypropylene is incompatible with strong oxidizers—as the
basis for his opinion that Ethicon’s mesh should not be used in the vagina. Ethicon
argues that the MSDS “provides no support for the opinions expressed” because the
MSDS “does not forbid implantation in humans.” Mem. 19 [ECF No. 2085]. Ethicon
also seems to argue that Dr. Elliott is unqualified to offer opinions based on the MSDS
because Dr. Elliott does not know how the MSDS was prepared.
The plaintiffs do not respond to the MSDS-related objections, and the court
will not make arguments for them. Accordingly, Ethicon’s Motion is GRANTED to
the extent it seeks to preclude Dr. Elliott from opining that Ethicon’s mesh should
not be used in the vagina on the basis of the MSDS.
b. Properties
Ethicon seeks to exclude Dr. Elliott’s testimony linking alleged degradation to
any clinical harm because he has not provided a reliable basis for this claim. Dr.
Elliott acknowledges in his deposition that there are no studies establishing the
correlation. Although the lack of literature alone is not fatal, Dr. Elliott does not
provide the court with any scientific basis for his opinion, either in his expert report
or in response to the Motion. Accordingly, Dr. Elliott’s testimony linking degradation
to clinical harm is EXCLUDED and Ethicon’s Motion on this point is GRANTED.2

2

One note of clarification: Ethicon does not challenge Dr. Elliott’s testimony that degradation occurs,

6

Ethicon also asks the court to exclude testimony about shrinkage and
contraction because the medical literature Dr. Elliott cites addresses hernia mesh,
not SUI mesh. The plaintiffs respond that “Dr. Elliott has made clear why it is
appropriate to extrapolate the hernia data,” citing to deposition testimony and
explaining that the mesh at issue is identical and the vagina would be subject to even
more contraction than the abdomen. Resp. 19 [ECF No. 2181]. Ethicon’s objections
are better suited for cross-examination. The court DENIES Ethicon’s Motion on this
matter.
The court also DENIES Ethicon’s contention that Dr. Elliott is unqualified to
opine on the tensioning of the TVT mesh as without merit. Dr. Elliott’s experience as
a urogynecologist who surgically removes mesh devices, combined with his review of
the medical literature, qualifies him to opine on matters involved in proper surgical
placement of the TVT device.
Ethicon also seeks to exclude Dr. Elliott’s testimony that the “TVT has the
‘potential’ for being cytotoxic” because it is too speculative. Mem. 20. Qualifying an
opinion or expressing varying degrees of certainty in a statement does not make it
speculation or automatically render it unreliable. See, e.g., Daubert, 509 U.S. at 590
(“[I]t would be unreasonable to conclude that the subject of scientific testimony must
be ‘known’ to a certainty; arguably, there are no certainties in science.”) Accordingly,
to the extent Ethicon seeks to exclude Dr. Elliott’s opinions on cytotoxicity as
unreliable, its motion is DENIED.

so I make no judgment as to the reliability of that testimony.

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c. Marketing
Ethicon argues that Dr. Elliott should not be permitted to provide opinions
regarding Ethicon’s successful marketing strategies. Nothing in the record indicates
that Dr. Elliott is qualified to offer such opinions. Further, these opinions amount to
discussions of corporate conduct and state-of-mind, which have been consistently
precluded. These opinions are EXCLUDED.
d. Alternative Designs and Products

First, Ethicon argues that Dr. Elliott should not be permitted to testify that
alternative procedures are safer than Ethicon’s mesh products. Expert testimony on
this subject, Ethicon claims, is not relevant. The relevance of this expert testimony is
better decided on a case-by-case basis. Accordingly, I RESERVE ruling on this matter
until trial.
Ethicon objects to the reliability of Dr. Elliott’s expert testimony about whether
alternative procedures are safer than Ethicon’s mesh products. In my view, the
reliability of this expert testimony is heavily dependent on Dr. Elliott’s clinical
experiences.3
In the abstract, experience—on its own or accompanied by little else—is a
reliable basis for expert testimony. See Kumho, 526 U.S. at 156. But the reliability
inquiry must probe into the relationship between the experience and the expert

Ethicon argues that Dr. Elliott ignored relevant medical literature. However, Dr. Elliott’s expert
testimony is not subject to exclusion based on this contention because he does explain why he
discounted certain studies.
3

8

testimony:
If the witness is relying solely or primarily on experience, then the
witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. Here, the court does
not have enough information to judge the reliability or relevance of Dr. Elliott’s
particular experience.
In this specific context, I am without sufficient information at this time to draw
the fine line between reliable and unreliable expert testimony based primarily on an
expert’s clinical experiences. Accordingly, I RESERVE ruling until further testimony
may be offered and evaluated firsthand at trial.

Second, Ethicon claims Dr. Elliott is not qualified to offer expert testimony
about alternative designs (e.g., mesh with larger pore size or less weight).
Considering Dr. Elliott’s medical education and background and his vast experience
treating patients with mesh complications, he is qualified to testify about whether
one mesh product is safer than another. Ethicon’s Motion is DENIED on this point.
Ethicon wages a multi-faceted challenge to the reliability of Dr. Elliott’s expert
testimony about alternative designs. According to Ethicon, Dr. Elliott makes
assertions without supportive studies or sources and relies on studies of meshes that
are not used in the treatment of SUI. The plaintiffs respond by directing the court to
the studies Dr. Elliott read, the Ethicon documents he reviewed, and the clinical
experience he has had. Specifically, the plaintiffs argue that Dr. Elliott’s reliance on
data from studies of non-SUI meshes is appropriate because he explains why it is
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appropriate to consider results from non-SUI mesh studies when assessing meshes
used from the treatment of SUI. However, like the testimony above, the lynchpin of
Dr. Elliott’s testimony is his experience. And as noted above, I am without
information sufficient to assess whether this is a reliable foundation. So I RESERVE
ruling until further testimony may be offered and evaluated firsthand at trial.

Finally, Ethicon asks the court to exclude Dr. Elliott’s expert testimony that
laser-cut mesh is a safer alternative to mechanical-cut mesh. During his deposition,
Dr. Elliott clearly stated that he does not believe mechanical-cut mesh presents more
or less risk than laser-cut mesh. E.g., Elliott Dep. 226:20–21 (“I don’t think overall
there’s going to be a higher risk from one or the other.”); Elliott Dep. 228:16–17 (“I
am not here today to say that laser cut is better or worse.”). Accordingly, Ethicon’s
Motion is GRANTED 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 case, a position

10

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
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

11

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
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,

12

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.
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

13

are otherwise admissible—he or she may not offer testimony that is solely a conduit
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 General Opinions of Daniel Elliott, M.D. [ECF No. 2082].

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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 26, 2016

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

IN RE: ETHICON, INC. PELVIC REPAIR
SYSTEM PRODUCTS LIABILITY
LITIGATION

THIS DOCUMENT RELATES TO
ETHICON WAVE 1 CASES

Master File No. 2:12-MD-02327
MDL No. 2327

JOSEPH R. GOODWIN
U.S. DISTRICT JUDGE

EXHIBIT A TO MOTION TO EXCLUDE CERTAIN GENERAL OPINIONS OF
DANIEL ELLIOTT, M.D.
ALL CASES PERTINENT TO MOTION
1. Joan Adams v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01203 (Prolift);
2. Donna Amsden v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00960 (Prolift);
3. Dina Sanders Bennett v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00497 (Prolift &
TVT-Secur);
4. Sharon Boggs, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00368 (TVT-O &
Prolift);
5. Myra Byrd, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00748 (TVT-O);
6. Sharon Carpenter, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00554 (Prolift);
7. Melissa Clayton, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00489 (Prolift);
8. Carey Beth Cole, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00483 (Prolift);
9. Fran Denise Collins v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00931 (TVT-O);
10. Mary F. Cone v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00261 (TVT-O);
11. Amanda Deleon, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00358 (Prolift);
12. Dina Destefano-Raston, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01299
(TVT-O);
13. Carol Jean Dimock v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00401 (Prolift &
TVT-O);

14. Karen Forester, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00486 (TVT-O);
15. Betty Funderburke v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00957 (Prolift &
TVT);
16. Teresa Georgilakis, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00829 (TVTO);
17. Pamela Gray-Wheeler v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00455 (Prolift &
TVT-Secur);
18. Susan Guinn v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01121 (TVT-O);
19. Rocio Herrera-Nevarez v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01294 (TVT-O);
20. Barbara Hill, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00806 (Prolift);
21. Joyce Justus v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00956 (Prolift);
22. Barbara Kaiser v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00887 (Prolift);
23. Diane Kropf, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01202 (Prolift &
TVT-O);
24. Heather Long v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-001275 (TVT);
25. Donna Loustaunau, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00666
(Prolift);
26. Deborah Lozano, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00347 (Prolift
&& TVT-O);
27. Dee McBrayer, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00779 (Prolift
Posterior);
28. Tina Morrow, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00378 (Prolift Total
-------------------------------------------------------------------------------------------------------& TVT-O); (Wave 2 case)
------------29. Cynthia Nix v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01278 (Prolift Anterior,
Prolift Total & TVT-O);
30. Mary Jane Olson, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00470 (Prolift
Total & TVT-O);
31. Noemi Padilla, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00567 (Prolift +M
Posterior);
32. Patti Ann Phelps, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01171 (TVT);

33. Rebecca Pratt v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01273 (TVT);
34. Maria Eugenia Quijano v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00799 (TVT);
35. Penny Rhynehart v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01119 (Prolift Total &
TVT-O);
36. Debra Schnering, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01071 (TVT);
37. Donna Shepherd v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00967 (TVT-Secur);
38. Teri Key Shively v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00379 (Prolift Posterior
& TVT-O);
39. Cherise Springer, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00997 (TVT-O);
40. Maria C. Stone, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00652 (Prolift
Posterior);
41. Charlene Logan Taylor v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00376 (Prolift
Posterior & TVT-O);
42. Kimberly Thomas v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00499 (Prosima
Anterior & TVT-O);
43. Mary Thurston, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00505 (TVT);
44. Judy G. Williams v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00657 (Prolift
Posterior & TVT-O);
45. Nancy Williams v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00511 (Prolift Total &
TVT-O);
-------------------------------------------------------------------------------------------------(Closed)
46. Blynn Wilson v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00921 (Prolift Total);
47. Christine Wiltgen, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01216 (TVT);
and
48. Sandra Wolfe v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00335 (Prolift Total &
TVT-O).

* Defendants reserve the right to supplement this list should any plaintiff designate Dr. Elliott as
general causation expert in MDL Wave 1.