Corley-Davis v. C. R. Bard, Inc.
MEMORANDUM OPINION AND ORDER (Daubert Motion re: Bruce Rosenzweig, M.D.) The 24 MOTION by C. R. Bard, Inc. to Exclude Opinions and Testimony of Bruce A. Rosenzweig, M.D. is DENIED, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 2/12/2018. (cc: counsel of record; any unrepresented party) (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:16–cv–10811
C. R. BARD, INC.,
MEMORANDUM OPINION AND ORDER
(Daubert Motion re: Bruce Rosenzweig, M.D.)
Pending before the court is the Motion to Exclude or Limit Certain Opinions
and Testimony of Bruce Rosenzweig, M.D. [ECF No. 24] filed by defendant C. R. Bard,
Inc. (“Bard”) on September 29, 2017. The plaintiff has responded to the Motion [ECF
No. 27], and Bard has replied [ECF No. 30]. The Motion is now ripe for consideration
because briefing is complete.
This case resides in one of seven MDLs assigned to me by the Judicial Panel
on Multidistrict Litigation (“MDL”) 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 24,000 cases currently pending, approximately
3,000 of which are in the C. R. Bard, Inc. MDL, MDL No. 2187.
In an effort to manage the massive Bard MDL efficiently and effectively, the
court decided to conduct pretrial discovery and motions practice on an individualized
basis. To this end, I ordered the plaintiffs and defendants to submit a joint list of
remaining cases in the Bard MDL, MDL 2187, with claims against Bard and other
defendants where counsel has at least twenty cases in the Bard MDL. The list
included nearly 3000 cases. From these cases, I selected 332 cases to become part of
a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial
Order No. 244, In re C. R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10–
md–02187, Mar. 3, 2017, https://www.wvsd.uscourts.gov/MDL/2187/orders.html.
Upon the creation of a wave, a docket control order subjects each active case in the
wave to the same scheduling deadlines, rules regarding motion practice, and
limitations on discovery. I selected the instant civil action as a Wave 5 case.
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
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
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
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
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.
A. Specific Causation
Bard first argues that Dr. Rosenzweig’s specific causation opinions pertaining
to the alleged injuries are unreliable because he did not personally examine the
plaintiff, the explanted mesh device or pathology materials, or consider her
complicated medical history sincerely. I disagree. First, as discussed above, 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.” Westberry, 178 F.3d. at
265. Second, Dr. Rosenzweig explained in his expert report and during his deposition
his methodology in formulating his differential diagnosis and his reasons for inferring
from the plaintiff’s medical records his specific causation opinions. See, e.g., Bard’s
Mot. to Exclude or Limit Certain Ops. & Test. of Bruce A. Rosenzweig, M.D., Ex. B
(Rosenzweig Dep.), at 42:17-43:6; 44:21-45:24 [ECF No. 24-2]; Bard’s Mot. to Exclude
or Limit Certain Ops. & Test. of Bruce A. Rosenzweig, M.D., Ex. A (Rosenzweig
Report), at 6 [ECF No. 24-1]. If Bard wishes to challenge the soundness of this
inference, it may do so by offering competing testimony or through cross-examination.
Therefore, Bard’s motion on this point is DENIED.
B. Opinions Related to Degradation, Contraction, and Deformation
Bard also argues that Dr. Rosenzweig’s specific causation opinions pertaining
to the purported degradation, contraction, and deformation of the mesh product are
unreliable because he did not personally examine the removed mesh or any pathology
materials regarding the mesh in forming his opinion. However, Dr. Rosenzweig
explained during his deposition his reasons for inferring from the plaintiff’s medical
records the occurrence of degradation. Rosenzweig Dep. 44:21-45:24. If Bard wishes
to challenge the soundness of this inference, it may do so by offering competing
testimony or through cross-examination. Therefore, Bard’s motion on this point is
C. Safer Alternative Design
Next, Bard objects to testimony relating to general causation—specifically, Dr.
Rosenzweig’s opinions related to a safer alternative design. Any general causation
issues properly raised in a motion to exclude general causation testimony were
addressed in my earlier order on January 23, 2018 Order [ECF No. 5104], In re Bard,
Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10–md–02187. Bard’s Motion on this
point is DENIED, and any remaining issues are RESERVED for trial.
The court ORDERS that the Motion to Exclude or Limit Certain Opinions and
Testimony of Bruce Rosenzweig, M.D. [ECF No. 24] is DENIED. The court DIRECTS
the Clerk to send a copy of this Order to counsel of record and any unrepresented
February 12, 2018
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