Holzerland et al v. Johnson & Johnson et al

Filing 126

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Brian J. Flynn, 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 the General Causation Opinions and Testimony of Brian J. Flynn, MD, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 8/31/2016. (cc: attys; any unrepresented party) (REF: MDL 2327; Cases Listed on Exhibit) (mmw)

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:
Case Identified in the Exhibit Attached
Hereto
MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Brian J. Flynn, M.D.)
Pending before the court is the Motion to Exclude the General Causation
Opinions and Testimony of Brian J. Flynn, M.D. [ECF No. 2130] 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

1

The plaintiffs identified the Wave 1 cases affected by this Motion in their Exhibit A [ECF No. 21301], 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.

2

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

Daubert. Nevertheless, in some instances I face Daubert challenges where my

3

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—and I will therefore reserve ruling until the expert testimony can be
evaluated firsthand.
III.

Legal Standard

By now, the parties should be intimately familiar with Rule 702 of the Federal

4

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).
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. Brian J. Flynn is a practicing urogynecologist who is board-certified in

5

urology and female pelvic medicine and reconstructive surgery. More than half of his
practice concerns female pelvic medicine.
a. Alternatives
The plaintiffs challenge the reliability of Dr. Flynn’s expert testimony about
mechanical-cut and laser-cut mesh. Faced with this challenge, Ethicon argues that
Dr. Flynn’s clinical experience provides a reliable foundation for this expert testimony
and that this experience is confirmed by medical literature.
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:
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. Flynn’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.
b. Safety and Efficacy
The plaintiffs also challenge the reliability of Dr. Flynn’s expert testimony
6

about safety and efficacy.2 Faced with this challenge, Ethicon retorts that Dr. Flynn’s
expert testimony rests on a solid foundation of medical literature and personal
experience.
Insofar as it is built on medical literature, the foundation of Dr. Flynn’s expert
testimony is shaky. Upon review, Dr. Flynn focused only on medical literature that
supported his opinion, ignoring relevant, contrary medical literature while not
explaining his reason for doing so. See, e.g., Sanchez v. Bos. Sci. Corp., No. 2:12-cv5762, 2014 WL 4851989, at *11 (S.D. W. Va. Sept. 29, 2014) (noting review of this
sort may render opinion unreliable and collecting cases).
With a crumbling foundation of medical literature, my focus turns to whether
Dr. Flynn’s experience can provide a reliable foundation for his opinion. In the
abstract, experience 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 when experience is the primary building block
of the expert 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. Flynn’s

Each party bickers about the other’s failure to comply with a rule of motions practice. Ethicon asks
that I ignore the plaintiffs’ memorandum because it was filed three minutes late; the plaintiffs claim
I should ignore Ethicon’s response because it is one page too long. Both infractions are minor and, in
my view, offsetting. For now, I will ignore these points.
2

7

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 safety and efficacy.
Accordingly, I RESERVE ruling until further testimony may be offered and evaluated
firsthand at trial.
c. Mesh Properties
Next, the plaintiffs challenge Dr. Flynn’s qualifications to opine on
degradation, pathology, and mesh design—specifically that polypropylene mesh does
not degrade in vivo or cause any clinically significant effect. They argue that Dr.
Flynn’s opinions exceed his expertise and experience, he has admitted he is not an
expert in these fields, and he failed to review most of the relevant literature. I find
these arguments without merit.

Dr. Flynn is a board-certified urologist, with

undergraduate training in biomedical engineering. He has performed over 1,000
surgical procedures for the treatment of SUI and POP, teaches how to implant mesh
devices, and performs around 50 revision procedures annually. This extensive clinical
experience, combined with Dr. Flynn’s review of scientific literature, qualifies Dr.
Flynn to opine on mesh’s reaction to and effect on the human body. The plaintiffs’
Motion is DENIED on this matter.
d. Complications
The plaintiffs challenge Dr. Flynn’s opinion that the TVT-O uses an approach
that allows a greater distance between the implanted mesh and the obturator nerve,
thereby reducing potential complications in SUI surgery. The plaintiffs argue that

8

this opinion is unreliable because Dr. Flynn ignored evidence that the TVT-O is
associated with an increased risk of nerve injury and because Dr. Flynn does not
recommend the use of the TVT-O for his own patients.
Dr. Flynn stated in his deposition that he has not used the TVT-O in several
years because he believes the TVT-Abbrevo is a better device. However, just because
Dr. Flynn prefers a device over the TVT-O does not mean he could not reliably
conclude that the TVT-O is safe and effective.
The plaintiffs also argue that Dr. Flynn’s opinions are unreliable because he
failed to consider three studies that were shown to him at his deposition, but Dr.
Flynn explained why he chose not to rely on the studies. Dr. Flynn has sufficiently
supported his opinions with his experience and a review of the scientific literature.
To the extent that the plaintiffs believe that Dr. Flynn should have considered
additional studies or disagree with his conclusion to discount certain studies, they
are free to cross-examine Dr. Flynn on those matters. The plaintiffs’ Motion is
DENIED on this point.
e. Warnings
The plaintiffs claim Dr. Flynn 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. Flynn 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 urogynecologist may testify
about the specific risks of implanting mesh and whether those risks appeared on the

9

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. Flynn does not possess the additional expertise to offer expert testimony
about what an IFU should or should not include. Accordingly, Dr. Flynn’s expert
testimony about these matters 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,
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

10

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
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

11

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.
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

12

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 or her 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 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 cross-

13

examination 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 excluded, the parties ask the court to prevent experts from offering
testimony 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 the General Causation Opinions and Testimony of Brian J. Flynn,
M.D. [ECF No. 2130].
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:

14

August 31, 2016

EXHIBIT A
Flynn

EXHIBIT A - Flynn
This Motion and Memorandum of Law relate to the following plaintiffs:
Civil Action No.

Ruiz v. Ethicon, Inc.

2:12-cv-1021

Lehman v. Ethicon, Inc.

2:12-cv-517

Gomez v. Ethicon, Inc.

2:12-cv-344

Lozano v. Ethicon, Inc.

2:12-cv-347

Freitas v. Ethicon, Inc.

2:12-cv-1146

Holzerland v. Ethicon, Inc.

2:12-cv-875

Hankins v. Ethicon, Inc.

2:12-cv-369

Hankins v. Ethicon, Inc.

2:12-cv-1011

Lankston v. Ethicon, Inc.

2:12-cv-755