Day et al v. Ethicon, Inc. et al

Filing 81

MEMORANDUM OPINION AND ORDER (Daubert Motion re: Christopher Walker, M.D.) The 50 MOTION by Ethicon, Inc., Ethicon, LLC, Johnson & Johnson to Exclude Case-Specific Opinions of Dr. Christopher Walker is DENIED in part and RESERVED in part, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 9/1/2017. (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:

Charlotte Day, et al. v. Ethicon, Inc., et al.

Civil Action No. 2:12-cv-02264

MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Christopher Walker, M.D.)
Pending before the court is the Motion to Exclude Case-Specific Opinions of Dr.
Christopher Walker [ECF No. 50] 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 50,000 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. 239, 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. 239, 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

Ethicon first argues that I should exclude Dr. Walker’s testimony because it
does not identify a specific alleged defect that caused Ms. Day’s alleged injuries.
However, after reviewing the record, I determine that Dr. Walker and resources upon
which he relies sufficiently identify a specific defect that caused Ms. Day’s alleged
injuries. To the extent Ethicon believes the foundation of Dr. Walker’s testimony is
lacking, Ethicon may attack that testimony on cross-examination. Ethicon’s Motion
on this point is DENIED.
Ethicon next argues that Dr. Walker fails to adequately identify alternative
designs. However, after reviewing the record, I determine that Dr. Walker has
sufficiently identified alternative designs. Ethicon’s Motion on this point is DENIED.
Ethicon also argues that Dr. Walker did not conduct a proper differential
diagnosis. I disagree.
Dr. Walker is a board-certified urogynecologist who performed numerous mesh
surgeries. Resp. 5 [ECF No. 56]. Dr. Walker’s expert report and deposition testimony
show that he conducted a detailed review of the Ms. Day’s medical records. Dr.
Walker considered numerous alternative causes for the Ms. Day’s injuries and
explained his reasons for ruling out those alternative causes.
As discussed above, an expert’s causation opinions will not be excluded

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“because he or she has failed to rule out every possible alternative cause of a plaintiff's
illness.” Westberry, 178 F.3d. at 265. Ethicon’s suggested other possible alternative
causes affect the weight—not the admissibility—of an expert’s testimony, unless the
expert can provide no explanation for ruling out such alternative causes at trial. See

id. at 265. To the extent that Ethicon believes that Dr. Walker failed to properly
consider other alternative causes, Ethicon is free to address those issues on crossexamination. Ethicon’s Motion on this point is DENIED.
Ethicon next argues that I should exclude testimony regarding future injuries
because such testimony is speculative and not useful to the trier of fact. However,
after reviewing the record, I find that the testimony is sufficiently reliable and
relevant to move forward. To the extent Ethicon believes the testimony is lacking,
Ethicon may attack that testimony on cross-examination. Ethicon’s Motion on this
point is DENIED.
Ethicon next argues that Dr. Walker should not be permitted to testify
regarding instruction for use. However, that topic is the province of a general
causation expert—not a specific causation expert. In PTO No. 239, I directed the
parties to file general causation objections in the main MDL. I will not rule on general
causation issues raised in a specific causation motion. Accordingly, 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 Case-Specific Opinions of Dr.
Christopher Walker [ECF No. 50] 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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September 1, 2017