Dixon v. Johnson & Johnson et al

Filing 128

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Marc Toglia, M.D.) The 94 MOTION by Dennis W. Dixon, Virginia M. Dixon to Exclude Certain Opinions and Testimony of Marc Toglia, M.D. is DENIED in part and RESERVED in part, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 2/6/2017. (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:

Dennis W. Dixon v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-01081

MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Marc Toglia, M.D.)
Pending before the court is the Motion to Exclude Certain Opinions and
Testimony of Marc Toglia, M.D. [ECF No. 94] filed by the plaintiff. 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 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
794, 800 (Ga. Ct. App. 2012) (refusing to exclude defendant’s specific causation expert

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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 plaintiff argues that I should prohibit Dr. Toglia from testifying regarding
Virginia Dixon’s implanting surgeon’s conduct and whether it fell under the
applicable standard of care. Specifically, the plaintiff attacks several of Dr. Toglia’s
opinions criticizing the implanting surgeon’s conduct where Dr. Toglia failed to opine
that the surgeon’s conduct fell below a relevant standard of care. However, this is not
a medical malpractice case. Dr. Toglia need not show that the implanting surgeon’s
conduct fell below any standard of care; indeed, Dr. Toglia need not show that the

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implanting surgeon’s conduct caused the plaintiff’s injury. Instead, he is tasked with
giving testimony that affects the weight and potentially the admissibility of the
plaintiff’s specific causation expert. So long as the defense specific causation expert’s
opinion is a product of his specialized knowledge or training and is reliably grounded,
it should be admissible to rebut the plaintiff’s specific causation expert.
Here, Dr. Toglia is an obstetrician/gynecologist, who is board-certified in
female pelvic medicine and reconstructive surgery and obstetrics and gynecology.
Resp. Ex. A., at 3 [ECF No. 101-1]. Dr. Toglia’s expert report and deposition testimony
show that he conducted a detailed review of Ms. Dixon’s medical records. Dr. Toglia
conducted a thorough, reliably-grounded analysis of the medical evidence and
determined that Ms. Dixon’s proffered specific cause was unlikely. He need not take
an additional step and prove that another alternative cause caused the plaintiff’s
injury; causation is the plaintiff’s burden. To the extent the plaintiff believes that Dr.
Toglia’s testimony is flawed, she may address those issues on cross-examination and
with the testimony of her own specific causation witness.
The plaintiff’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 Certain Opinions and
Testimony of Marc Toglia, M.D. [ECF No. 94 ]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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February 6, 2017