Lankston v. Ethicon, Inc.

Filing 134

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Bruce Rosenzweig, M.D.) The court DENIES in part, GRANTS in part, and RESERVES in part the Motion filed in MDL 2327 by Ethicon, Inc., Johnson & Johnson to Exclude Certain General Opinions of Bruce Rosenzweig, M.D. in Wave 1 Cases, 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) (kll)

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: Bruce Rosenzweig, M.D.)
Pending before the court is the Motion to Exclude Certain Opinions of Bruce
Rosenzweig, M.D. [ECF No. 2047] filed by the defendants Ethicon, Inc. and Johnson
& Johnson (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

1 Ethicon

identified the Wave 1 cases affected by this Motion in its attached Exhibit A [ECF No. 20471], 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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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

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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

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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. Rosenzweig is a pelvic surgeon and urogynecologist. Ethicon seeks
exclusion of his expert testimony on several grounds.

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a. Alternative Design

First, Ethicon argues that Dr. Rosenzweig should not be permitted to testify
that alternative procedures are safer than Ethicon’s mesh products. Ethicon does not
challenge Dr. Rosenzweig’s qualifications or the reliability of this expert testimony;
instead, Ethicon challenges the relevance of this expert testimony. The relevance of
this expert testimony is better decided on a case-by-case basis. Accordingly, I
RESERVE ruling until trial.

Next, Ethicon claims Dr. Rosenzweig is not qualified to offer expert testimony
on whether there are clinical differences between mechanical-cut and laser-cut mesh
products. According to Ethicon, Dr. Rosenzweig cannot offer expert testimony on this
issue because he is not specially trained in product design processes. However, I find
that a urogynecologist who has extensive experience working with mechanical-cut
and laser-cut mesh products—like Dr. Rosenzweig—is qualified to offer expert
testimony of this sort. The plaintiffs’ Motion is DENIED on this point.

Third, Ethicon challenges the reliability of Dr. Rosenzweig’s expert testimony
about mechanical-cut and laser-cut mesh. Faced with this challenge, the plaintiffs
retort that Dr. Rosenzweig’s clinical experience provides a reliable foundation for this
expert testimony.
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
testimony:

6

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. Rosenzweig’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 on whether
mechanical-cut mesh is safer than laser-cut mesh based primarily on an expert’s
clinical experiences. Accordingly, I RESERVE ruling until further testimony may be
offered and evaluated firsthand at trial.

Finally, Ethicon challenges the reliability of Dr. Rosenzweig’s expert
testimony about Ultrapro mesh as an alternative. Ethicon first argues that
this testimony is based on a logical fallacy—the logical fallacy being that a device
that results in fewer complications is a safer alternative design. I see no logical
fallacy here; whether an alternative device has few complications is surely related to
whether the alternative is safer. Ethicon then argues that Dr. Rosenzweig
cannot claim Ethicon had insufficient long-term studies about its mesh products
and then offer up an alternative (i.e., Ultrapro) that was the subject of a single
study and that Dr. Rosenzweig believes should be studied longer. I am not convinced
these facts render Dr. Rosenzweig’s expert testimony unreliable, especially
considering his reliance on other studies that he explains are relevant to this
expert testimony. While Ethicon may explore its concerns on cross-examination,
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its Motion is DENIED on this point.
b. Warnings
Ethicon asks the court to exclude Dr. Rosenzweig’s expert testimony about
whether the relevant Instructions for Use adequately warned about the duration,
severity, and frequency of risks. Ethicon does not claim Dr. Rosenzweig is unqualified
or offers expert testimony that is unreliable.2 It appears Ethicon’s argument centers
on the relevance of this expert testimony. In Ethicon’s opinion, a manufacturer does
not have a legal obligation to warn about the duration, severity, and frequency of
risks, so these matters do not bear on whether Ethicon provided adequate warnings.
I disagree; as do other courts. E.g., Cisson v. C. R. Bard Inc., No. 2:11-cv-195, 2013
WL 5700513, at *7 (joining other courts in finding “a failure to warn about the rate
or severity of potential injury creates a jury question over the adequacy of
warnings.”). Accordingly, Ethicon’s Motion is DENIED on this point.
c. Properties
Ethicon seeks to preclude Dr. Rosenzweig from testifying about degradation
and other biomaterials opinions—specifically his opinions that Ethicon’s mesh
devices degrade, are subject to fraying and particle loss, and are cytotoxic. Ethicon
objects to Dr. Rosenzweig’s testimony on these subjects because he cannot connect
the alleged phenomena to “adverse events experienced by women.” Mem. 12–13 [ECF
No. 2049]. I reject this argument. A single expert need not provide all the pieces of

2 In its reply brief—and in the briefest fashion—Ethicon claims Dr. Rosenzweig is not qualified to offer
this expert testimony. I decline to decide a matter raised in such short order, especially when raised
in a reply brief and without affording the plaintiffs an opportunity to respond.

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the puzzle for their testimony to be useful to the jury in determining the ultimate
issues in the case. See, e.g., Huskey v. Ethicon, Inc., 29 F. Supp. 3d 691, 710 (S.D. W.
Va. 2014) (rejecting a similar argument). Dr. Rosenzweig’s testimony is a relevant
step towards establishing general causation. Nor does his alleged inability to connect
degradation, fraying, particle loss, and cytotoxicity to specific complications
undermine the reliability of his testimony that these phenomena occur. Ethicon’s
Motion is DENIED on these matters.
d. MSDS
Ethicon seeks to preclude Dr. Rosenzweig from using the MSDS—specifically
the MSDS statement that polypropylene is incompatible with strong oxidizers—as
the basis for his opinion that the mesh at issue should not be used in the vagina.

First, Ethicon argues that the MSDS “provides no support for the opinions
expressed,” because the MSDS “does not forbid implantation in humans.” Mem. 14
[ECF No. 2049] Additionally, Ethicon states that the MSDS is for “‘polypropylene
resin,’ not polypropylene and certainly not Prolene.” Id. I find these concerns without
merit. The MSDS need not expressly forbid implantation in humans for Dr.
Rosenzweig to use its statements about strong oxidizers—which he explains are
readily found in the vagina—to support his concerns about mesh use in the vagina.
To the extent Ethicon disagrees with Dr. Rosenzweig’s conclusion, Ethicon’s
objections are better suited for cross-examination. Ethicon’s Motion on this point is
DENIED.
Ethicon also argues that Dr. Rosenzweig is unqualified to offer opinions based

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on the MSDS because Dr. Rosenzweig does not know how the MSDS was prepared. I
disagree. A urogynecologist does not need to be an expert in crafting MSDS warnings
to use the substance of such warnings in forming opinions about how mesh reacts in
the human body. Accordingly, Ethicon’s Motion is DENIED on this point.
e. Complications
Ethicon moves for the exclusion of Dr. Rosenzweig’s opinions relating to his
allegations that TVT causes cytotoxicity and that Ethicon should have warned
physicians of that fact. Additionally, Ethicon argues that Dr. Rosenzweig is not
qualified to offer opinions regarding the adequacy of Ethicon’s testing regarding
cytotoxicity.
The plaintiffs point out that this court previously ruled on this issue in Huskey,
29 F. Supp. 3d 691, and the court permitted Dr. Rosenzweig’s opinions regarding
cytotoxicity. The court’s former determination was based on Dr. Rosenzweig’s
extensive interaction with patients exhibiting complications, surgeries that he has
performed, and internal Ethicon studies and documentation showing TVT-O could
cause cytotoxicity. Huskey, 29 F. Supp. 3d at 705. Dr. Rosenzweig’s qualifications are
the same in this case. To the extent that Ethicon believes cytotoxicity is not clinically
significant, Ethicon may cross-examine Dr. Rosenzweig on that issue. Accordingly,
Ethicon’s Motion regarding Dr. Rosenzweig’s opinions relating to cytotoxicity is
DENIED.
However, I FIND that Dr. Rosenzweig is not qualified to opine that Ethicon’s
testing was insufficient. There is no indication that Dr. Rosenzweig has any

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experience or knowledge on the appropriate testing a medical device manufacturer
should undertake. Therefore, Dr. Rosenzweig’s testimony that Ethicon failed to
appropriately test for cytotoxicity is EXCLUDED.
Ethicon next argues that Dr. Rosenzweig’s opinion that the shorter length of
laser-cut mesh in the TVT Abbrevo leads to more complications should be excluded
as unreliable. Dr. Rosenzweig does not cite to any study or personal experience to
support his opinion, but he instead cited to an internal Ethicon document that does
not support his opinion. Dr. Rosenzweig simply provides no reliable methodology for
his opinions regarding laser-cut mesh. These opinions are EXCLUDED.
f. Design Process
Ethicon claims Dr. Rosenzweig is not qualified to offer what it characterizes as
design opinions. But they do not explain or identify design 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 Ethicon wants to prevent Dr. Rosenzweig from
providing any opinions that even mention the word “design.” But the mere utterance
of a single word is not some incantation that transforms an opinion about one thing
into something else.
A close, contextual reading of the transvaginal mesh cases where this issue has
been raised before reveals the heart of Ethicon’s objections. In this motion—and
several others—the plaintiffs argue that the expert at issue lacks the particularized

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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.
Suffice it to say, an expert opining on these matters must possess skills,
knowledge, experience, education, or training particularly relevant to the processes
at issue. See, e.g., Tyree v. Bos. Sci. Corp., 54 F. Supp. 3d 501, 550 (S.D. W. Va. 2014)
(finding expert who “participated in the development of mesh products” qualified to
discuss design procedure). Experience as a practicing urogynecologist or urologist
alone does not translate into experience with or knowledge about the process of
designing a product.
Ethicon claims Dr. Rosenzweig is not qualified to opine on the design of the
relevant mesh products because he does not have any experience with biomaterials
or polymer chemistry and because he has not conducted comparative mesh studies.
But Dr. Rosenzweig is familiar with the design of surgical products. For example, he
has invented a catheter device. In short, this experience combined with surgical
experiences makes Dr. Rosenzweig is qualified to provide opinions of this sort.
Furthermore, contrary to Ethicon’s contentions, Dr. Rosenzweig has a reliable
basis for his design opinions. He considered more than internal corporate documents
in arriving at his opinion on the design of the relevant products; he relied on his
experience and relevant scientific literature. His detailed examination of the
literature in light of his firsthand experience with mesh devices satisfies the

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reliability requirements of Daubert. Accordingly, Ethicon’s Motion is DENIED on this
very limited issue.
g. Marketing
Ethicon seeks to exclude Dr. Rosenzweig’s expert testimony about whether its
products were less effective or less safe for certain patient populations. In the past, I
have excluded this testimony because “it is not helpful to the jury to have Dr.
Rosenzweig read a document explaining what the inventor of the [product] thought
about this. The jury is capable of reading that document itself.” Edwards v. Ethicon,

Inc., 2:12-cv-9972, 2014 WL 3361923, at *10 (S.D. W. Va. July 8, 2014). I see no
reason—nor have I been given one—to depart from this conclusion. Accordingly, Dr.
Rosenzweig’s expert testimony on this matter is EXCLUDED.
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,

13

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
anticipated prohibition on FDA testimony—involve foreign regulations and

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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,
I RESERVE ruling on such matters until they may be evaluated in proper context at

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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
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 specific expert
testimony to be exclude, 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 of Bruce Rosenzweig, M.D. [ECF No. 2047].

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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 Master File No. 2:12-MD-02327
SYSTEM PRODUCTS LIABILITY
MDL No. 2327
LITIGATION
_____________________________________
JOSEPH R. GOODWIN
THIS DOCUMENT RELATES TO
U.S. DISTRICT JUDGE
ETHICON WAVE 1 CASES
EXHIBIT A TO MOTION TO EXCLUDE CERTAIN GENERAL OPINIONS OF DR.
BRUCE ROSENZWEIG
ALL CASES PERTINENT TO MOTION
1. Marie Banks

v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01318 (TVT);

2. Bonnie Blake, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00995 (TVT);
3. Karen Bollinger v. Ethicon, Inc., et. al., Civil Action No. 2:12-cv-01215 (TVT);
4. Denise Burkhart v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01023 (TVT);
5. Fran Denise Collins v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00931 (TVT-O);
6. Patricia Conti v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00516 (TVT);
7. Carol Jean Dimock v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00401 (Prolift &
TVT-O);
8. Dennis W. Dixon, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01081
(Gynemesh PS);
9. Karen Forester v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00486 (TVT-O);
10. Pamela Free v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00423 (TVT);
11. Susan Guinn v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01121 (TVT-O);
12. Mary Hendrix, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00595 (TVT);
13. Rocio Herrera-Nevarez v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01294 (TVT-O);
14. Jeanie Holmes v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01206 (TVT-O);

15. Myndal Johnson v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00498 (TVT);
16. Wilma Johnson v. Ethicon, Inc., et al., Civil Action No. 2:1 2-cv-00809 (Gynemesh PS
& TVT);
17. Holly Jones, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00443 (TVT);
18. Cheryl Lankston v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00755 (TVT-Secur);
19. JoAnn Lehman v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00517 (TVT-O);
20. Heather Long v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01275 (TVT);
21. Penny Rhynehart v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01119 (Prolift Total &
TVT-O);
22. Brenda Riddell, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00547 (Prolift
Anterior & TVT-O);
23. Patricia Ruiz v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01021 (TVT-Secur);
24. Debra Schnering, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01071 (TVT);
25. Donna Shepherd v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00967 (TVT-Secur);
26. Cherise Springer, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00997 (TVT-O);
27. Margaret Stubblefield v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00842 (Gynemesh
PS);
28. Kimberly Thomas v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00499 (Prosima
Anterior & TVT-O);
29. Mary Thurston v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00505 (TVT);
30. Barbara J. Vignos-Ware, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00761
(Prosima Anterior & TVT-O);
31. Cathy Warlick, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00276 (Prolene
Soft Mesh, Prosima Combined & Gynemesh PS);
32. Judy G. Williams v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00657 (Prolift
Posterior & TVT-O);
33. Nancy Williams v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00511 (Prolift Total &
TVT-O);
34. Christine Wiltgen, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01216 (TVT);

35. Sandra Wolfe v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00335 (Prolift Total &
TVT-O); and
36. Donna Zoltowski v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-00811 (Prolift Total &
TVT-O).

**Defendants reserve the right to supplement this list should any other plaintiff be allowed to
designate Dr. Rosenzweig as a general causation expert in MDL Wave 1.