Lehman v. Ethicon, Inc. et al

Filing 141

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Bruce Rosenzweig, M.D.) The 106 Motion to Exclude Specific-Causation Testimony of Bruce Rosenzweig, M.D. is GRANTED in part, DENIED in part, and RESERVED in part, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/27/2017. (cc: counsel of record; any unrepresented party) (kp)

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:

Joann Lehman v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-00517

MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Bruce Rosenzweig, M.D.)
Pending before the court is the Motion to Exclude Specific-Causation
Testimony of Bruce Rosenzweig, M.D. [ECF No. 106] filed by the defendants. 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 60,000 cases currently pending, approximately 28,000 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 general causation Daubert
motions in the main MDL and specific causation Daubert motions, responses, and
replies in the individual member cases. To the extent that an expert is both a general
and specific causation expert, the parties were advised that that they could file a
general causation motion in the main MDL 2327 and a specific causation motion in
an individual member case. PTO No. 217, at 4.
II.

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.

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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).
In the context of specific causation expert opinions, the Fourth Circuit has held
that “a reliable differential diagnosis provides a valid foundation for an expert
opinion.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th Cir. 1999).
A reliable differential diagnosis typically, though not invariably, is
performed after ‘physical examinations, the taking of medical histories,
and the review of clinical tests, including laboratory tests,’ and generally
is accomplished by determining the possible causes for the patient’s
symptoms and then eliminating each of these potential causes until
reaching one that cannot be ruled out or determining which of those that
cannot be excluded is the most likely.

Id. at 262 (citations omitted). “A differential diagnosis that fails to take serious
account of other potential causes may be so lacking that it cannot provide a reliable
basis for an opinion on causation.” Id. at 265. However, an expert’s causation opinions
will not be excluded “because he or she has failed to rule out every possible alternative
cause of a plaintiff's illness.” Id. “The alternative causes suggested by a defendant
‘affect the weight that the jury should give the expert’s testimony and not the
admissibility of that testimony,’ unless the expert can offer ‘no explanation for why
she has concluded [an alternative cause offered by the opposing party] was not the

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sole cause.’” Id. at 265 (citations omitted).
At bottom, the court has broad discretion to determine whether expert
testimony should be admitted or excluded. Cooper, 259 F.3d at 200.
III.

Discussion

First, the plaintiffs concede that they will offer neither state of mind testimony
nor testimony regarding conditions the plaintiff never developed. Accordingly,
Ethicon’s Motion on those points are GRANTED.
Ethicon also objects to Dr. Rosenzweig’s testimony relating to general
causation—particularly alternative procedures and instructions for use relating to
specific patient pools. Any general causation issues properly raised in a motion to
exclude general causation testimony were addressed in this court’s August 26, 2016,
Order [ECF No. 132]. Ethicon’s Motion on this point is DENIED.
Finally, Ethicon objects to Dr. Rosenzweig’s opinions regarding degradation,
fraying, and particle loss in the plaintiff’s mesh because it argues that those opinions
are not based on reliable evidence. However, Dr. Rosenzweig gave sufficient bases for
that opinion. To the extent Ethicon believes those bases are lacking, they are free to
explore those shortcomings on cross-examination. Ethicon’s Motion on this point is
DENIED, and any remaining issues are RESERVED for trial.
IV.

Conclusion

The court ORDERS that the Motion to Exclude Specific-Causation Testimony
of Bruce Rosenzweig, M.D.. [ECF No. 106] is GRANTED in part, DENIED in part,
and RESERVED in part.

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.

ENTER:

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January 27, 2017