Moore v. C. R. Bard, Inc.
ORDER Plaintiffs' 53 Omnibus Motion re: Non-Retained Corporate Experts is DENIED; Plaintiffs' 49 Omnibus Motion re: Physician Experts is DENIED; C. R. Bard's 77 Motion to Exclude is DENIED; C. R. Bard's 85 Omnibus Motion is DENIED; and Plaintiffs' 87 Motion to Strike is DENIED as moot. The parties have leave to file additional expert-specific Daubert motions and the court will modify an existing PTO to reflect these deadlines. Signed by Judge Joseph R. Goodwin on 1/28/2015. (cc: attys; any unrepresented party) (ras)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
IN RE: C. R. BARD, INC.,
PELVIC REPAIR SYSTEM
PRODUCTS LIABILITY LITIGATION
MDL NO. 2187
THIS DOCUMENT RELATES TO:
Moore v. C. R. Bard, Inc.
Civil Action No. 2:13-cv-10178
Pending before the court are the following motions: (1) Plaintiffs’ Omnibus Motion to
Exclude Certain Opinions and Testimony of C. R. Bard, Inc.’s Non-Retained Corporate Experts
(“Plaintiffs’ Omnibus Motion re: Non-Retained Corporate Experts”) [Docket #53]; (2) Plaintiffs’
Omnibus Motion to Exclude Certain General Opinions and Testimony of C. R. Bard, Inc.’s
Physician Experts (“Plaintiffs’ Omnibus Motion re: Physician Experts”) [Docket #49]; (3)
Defendant C. R. Bard, Inc.’s Motion to Exclude or Limit Certain Opinions and Testimony by
Plaintiffs’ Treating Physicians (“Bard’s Motion to Exclude”) [Docket #77]; (4) Defendant C. R.
Bard, Inc.’s Omnibus Motion to Exclude Testimony and Evidence Pursuant to Daubert and the
Federal Rules of Evidence (“Bard’s Omnibus Motion”) [Docket #85]; and (5) Plaintiffs’ Motion
to Strike or, in the Alternative, Response in Opposition to Bard’s “Omnibus Motion to Exclude
Testimony and Evidence Pursuant to Daubert and the Federal Rules of Evidence” (Plaintiffs’
Motion to Strike”) [Docket #87].
These four “omnibus” motions [Dockets #53, #49, #77, #85] seek to exclude broad
categories of expert testimony. However, Rule 702, by its plain terms, contemplates Daubert
challenges directed at the opinions of specific experts, not the opinions of a collection of experts.
While these experts may have come to similar conclusions, it is not the conclusions that the court
must assess, but the reliability of the methods and procedures underpinning those conclusions.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993) (“The focus, of course, must be
solely on principles and methodology, not on the conclusions that they generate.”). Two experts
may come to a similar conclusion, but one or both experts’ methodology in reaching that
conclusion may be unreliable. Rule 702 directs the court to determine whether an expert is
qualified, whether his or her opinions are the product of reliable methodology, and whether the
opinions will be helpful to the jury. See Fed. R. Evid. 702. I can only conduct the required
Daubert analysis on an individualized basis.
For example, Bard’s Omnibus Motion makes no mention of any specific expert in this
case or his/her opinions. Instead, Bard merely recites the law governing expert testimony and a
history of this court’s prior Daubert rulings. Although the plaintiffs contend that their Omnibus
Motion re: Physician Experts is proper because they name specific experts and cite to their
reports, the motion still fails to provide an individualized assessment of the opinions the
plaintiffs seek to exclude. I acknowledge that in the Bard bellwether trials the court provided
generalized findings with regard to the plaintiffs’ treating physicians. See In re C. R. Bard, Inc.,
Pelvic Repair Sys. Prods. Liab. Litig., 948 F. Supp. 2d 589, 616-17 (S.D. W. Va. 2013). At the
time, these findings were useful in their context given the limited scope of the early bellwether
trials and the clear identity of each case. The court, however, had no intention of setting a
precedent contrary to the established framework of Federal Rule of Civil Procedure 26 or
Daubert. Clearly, at this point in the MDLs, where there are wave cases from multiple
jurisdictions, involving a variety of products, and requiring testimony from many different
treating physicians, such a blanket exclusion of opinions and testimony would be inappropriate.
Accordingly, Plaintiffs’ Omnibus Motion re: Non-Retained Corporate Experts [Docket
#53] is DENIED; Plaintiffs’ Omnibus Motion re: Physician Experts [Docket #49] is DENIED;
Bard’s Motion to Exclude [Docket #77] is DENIED; Bard’s Omnibus Motion [Docket #85] is
DENIED; and Plaintiffs’ Motion to Strike [Docket #87] is DENIED as moot. The parties have
leave to file additional expert-specific Daubert motions and the court will modify an existing
PTO to reflect these deadlines.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
ENTER: January 28, 2015
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