Collins v. Johnson & Johnson

• Court: District Court, S.D. West Virginia
• Decided: December 13, 2017
• Docket: 2:12-cv-00931
• Status: Unknown

Opinion

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:

Civil Action No. 2:12-cv-00931

MEMORANDUM OPINION AND ORDER ( Motion re: Bruce Rosenzweig, M.D.)

Pending before the court is the Motion to Exclude the Case-Specific Opinions of Bruce Rosenzweig, M.D. [ECF No. 91] filed by the defendants. The Motion is now ripe for consideration because briefing is complete. I. Background This action involves a Georgia plaintiff who was implanted with a mesh product manufactured by Ethicon, the Tension-free Vaginal Tape-Obturator (“TVT- O”), on December 21, 2011, at Meadows Regional Medical Center, Vidalia, Georgia, by Dr. Susanna Meredith. Am. Short Form Compl. [ECF No. 17] ¶¶ 1–12. The case resides in one of seven MDLs assigned to the Honorable Joseph R. Goodwin 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”). This individual case is one of a group of cases that the Clerk of the Court reassigned to me on November 22, 2016. [ECF No. 123]. In the seven MDLs, there are approximately 29,000 cases currently pending, approximately 17,000 of which are in the Ethicon MDL, MDL 2327. Prior to the reassignment, in an effort to efficiently and effectively manage the

massive Ethicon MDL, Judge Goodwin decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, Judge Goodwin ordered the plaintiffs and defendants to submit a joint list of 200 of the oldest cases in the Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These cases became part of a “wave” of cases to be

prepared for trial and, if necessary, remanded. See Pretrial Order No. 193, , No. 2:12-md-02327, Aug. 19, 2015, http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff’s case was selected as an “Ethicon Wave 1 case.” II. Legal Standard By now, the parties should be intimately familiar with Rule 702 of the Federal

Rules of Evidence and , 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; , 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.

, 259 F.3d 194, 199 (4th Cir. 2001) (citing , 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. , 509 U.S. at 595; , 525 U.S. 137, 141, 150 (1999). Finally, and simply, relevance turns on whether the expert testimony relates to any issues in the case. , , 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.” , 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. . 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.” . 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.” . “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 ‘ explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.’” . at 265 (citations omitted). At bottom, the court has broad discretion to determine whether expert

testimony should be admitted or excluded. , 259 F.3d at 200. III. Discussion

Ethicon argues that I should exclude Dr. Rosenzweig’s opinions regarding degradation, contracture/shrinkage, particle loss, and fraying because those opinions are unsupported by evidence and there is no evidence of proximate cause. However, after reviewing the record, I find that Dr. Rosenzweig’s opinion is sufficiently grounded to move forward. To the extent Ethicon believes Dr. Rosenzweig’s opinion is lacking, they may attack it on cross-examination. Ethicon’s Motion on these points is DENIED, and any remaining issues are RESERVED for trial. IV. Conclusion The court ORDERS that the Motion to Exclude the Case-Specific Opinions of Bruce Rosenzweig, M.D. [ECF No. 91] is DENIED in part and RESERVED in part. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

ENTER: December 13, 2017

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE