Stone et al v. Ethicon, Inc. et al
Filing
175
MEMORANDUM OPINION AND ORDER (Daubert Motion re: Stephen M. Factor, M.D.) The 134 Case Specific Daubert Motion to Exclude, or in the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor M.D. is DENIED in part and RESERVED in part, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/26/2017. (cc: counsel of record; any unrepresented party) (ts)
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:
Maria Stone, et al. v. Ethicon, Inc., et al.
Civil Action No. 2:12-cv-00652
MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Stephen M. Factor, M.D.)
Pending before the court is the Case Specific Daubert Motion to Exclude, or in
the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor M.D.
[ECF No. 134] 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 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
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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).
In the context of specific causation expert opinions, the Fourth Circuit has held
that plaintiffs may use “a reliable differential diagnosis[, which] 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).
Defendants, however, need not conduct a differential diagnosis to identify the
specific cause of an injury because they do not bear the burden of proving causation.
See 3 David Faigman et al. Modern Sci. Evidence § 21:6 (2015-2016 ed.). Indeed, a
defendant’s specific causation expert’s testimony should not be excluded because it
fails to identify the specific cause of a plaintiff’s injury. See Yang v. Smith, 728 S.E.2d
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794, 800 (Ga. Ct. App. 2012) (refusing to exclude defendant’s specific causation expert
testimony where that testimony did not identify an injury’s specific cause because the
defendant had no burden to prove the specific cause of the injury). In lieu of
conducting traditional differential diagnoses, defendants may instead provide expert
testimony suggesting alternative causes for the plaintiff’s injury in order to rebut the
plaintiff’s specific causation testimony. See Westberry, 178 F.3d at 265 (“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 sole cause.’” (citations omitted)); see also
Faigman, supra, at § 21:4 (“Sometimes, the courts subtly shift the burden of
production onto the defendant when determining whether the [plaintiff’s] expert has
done a sufficient job in ruling out other causes.”).
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
The plaintiffs first argue the Dr. Factor’s testimony must be excluded because
he did not create the slides he reviewed and he only reviewed the slides that were
stained. However, this does not render Dr. Factor’s review of the slides faulty, and it
certainly does not indicate that he failed to consider sufficient evidence. The plaintiffs
are, of course, permitted to explore any perceived deficiencies in Dr. Factor’s
testimony using cross-examination. The plaintiff’s Motion on this point is DENIED.
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Next, the plaintiffs argue that Dr. Factor is unqualified to testify as to
neuropathological issues and improperly relies on the report of another expert. First,
Dr. Factor has sufficient experience to testify as to neuropathological issues. Second,
I have previously ruled that experts may properly rely on the reports of other experts.
See Resp. Ex. C, at 8:23–10:16 [ECF No. 134-3]. I hold the same here. The plaintiffs’
Motion on this point is DENIED.
Next, the plaintiffs argue that Dr. Factor’s testimony should be excluded
because he did not review every material on his expansive “reliance list.” I will not
exclude Dr. Factor’s testimony because he failed to review one of the over six hundred
resources—resources that he has utilized at one point in his career or another—for
this specific case. In addition to attacking minutia, plaintiffs’ argument utterly lacks
legal support. The plaintiffs’ Motion on this point is DENIED.
Finally, the plaintiffs ask that I curtail Dr. Factor’s testimony attacking Dr.
Iakovlev’s methods. I will not do so based on an isolated line from a deposition. The
plaintiffs are free to attack any perceived deficiencies on cross-examination. The
plaintiffs’ Motion on this point is DENIED, and any remaining issues are
RESERVED for trial.
IV.
Conclusion
The court ORDERS that the Case Specific Daubert Motion to Exclude, or in
the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor MD [ECF
No. 134] is 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 26, 2017
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