Gomez v. American Medical Systems Incorporated

• Court: District Court, D. Arizona
• Decided: December 11, 2020
• Docket: 2:20-cv-00393
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Shannon Gomez, No. CV-20-00393-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 American Medical Systems Incorporated,

13 Defendant. 14 Pending before the Court are seven Daubert motions—three by Plaintiff Shannon 15 Gomez (“Gomez”) and four by Defendant American Medical Systems Inc. (“AMS”)—and 16 AMS’s motions to strike each of Gomez’s Daubert motions. The Court cannot decide the 17 merits of the Daubert motions because two of Gomez’s Daubert motions were improperly 18 filed and both parties failed to file papers related to the Daubert motions. The Court will 19 require parties to file papers in accordance with this Order and Local and Federal Rules. 20 BACKGROUND 21 This case originated in one of seven multidistrict litigations (“MDLs”), each against 22 a different manufacturer, totaling more than 100,000 cases, being handled by the Southern 23 District of West Virginia. (Doc. 52 at 1). The MDLs concern products liability for pelvic 24 repair systems, that is, vaginal mesh. (Doc. 52 at 1). Across the seven MDLs, many of the 25 manufacturers relied on the same experts, but the experts filed different reports in each 26 MDL. 27 Gomez filed her Amended Short Form Complaint on June 28, 2013 alleging a wide 28 variety of claims as a result of the implantation of two AMS vaginal mesh products. Gomez 1 asserted claims for negligence; gross negligence; design defect; manufacturing defect; 2 failure to warn; defective product; breach of express warranty; breach of implied warranty; 3 violation of consumer protection laws; fraudulent concealment; constructive fraud; 4 discovery rule, tolling and fraudulent concealment; negligent misrepresentation; negligent 5 infliction of emotional distress; unjust enrichment; and punitive damages. (Doc. 17). 6 While this case was in the MDL, fact and expert discovery was completed. (Doc. 7 52 at 1). The parties also were required to file dispositive and Daubert motions. (Doc. 52 8 at 1). In Pretrial Order #255, the MDL judge set October 18, 2018 as the deadline for 9 Daubert motions. (Doc. 35). AMS filed four timely Daubert motions challenging the 10 opinions and testimony of Dr. Bruce Rosenzweig; Dr. Jerry Blaivas; Dr. Vladimir 11 Iakovlev; and Drs. Scott Guelcher and Jimmy Mays. (Docs. 58-6 at 1; 58-18 at 1; 58-21 at 12 1; 58-31 at 1). On November 9, 2018, Gomez filed her own Daubert motion, seeking to 13 exclude the testimony of Dr. Debora L. Joslin. (Doc. 58-11 at 1–2). On November 16, 14 2018, AMS moved to strike Gomez’s Daubert motion as untimely. (Doc. 58-16 at 1). In AMS’s Motion to Strike, AMS also responded to the merits of Gomez’s motion regarding 15 Dr. Joslin. (Doc. 92 at 3–8). Gomez never responded to AMS’s Motion to Strike nor replied 16 to AMS’s argument on the merits. The Daubert motions were not resolved by the MDL 17 court. 18 In the order transferring the case to this Court, the MDL court ordered the parties to 19 designate relevant documents from the MDL in order to constitute an appropriate record 20 for this Court. (Doc. 52 at 2). On February 19, 2020, parties filed the Joint Designation of 21 Record for MDL Transfers. (Doc. 53). In it, Gomez included a Notice of Adoption, 22 purporting to adopt prior Daubert motions filed in separate cases for some of AMS’ experts 23 (Dr. Stephen Badylak, Dr. Karen Becker, Adam Kozak, and Dr. James Coad). (Docs. 53 at 24 3; 81 at 3). The Notice of Adoption did not cite specific prior motions but claimed to 25 “hereby adopt and incorporate by reference all prior Daubert Motions filed in this MDL 26 and related MDLs” for the four witnesses. (Doc. 53-35 at 1). Additionally, the Notice of 27 Adoption was filed in a later “wave” of cases in the AMS MDL, not the “wave” that 28 1 included Gomez’s case.1 (Doc. 53-35 at 1). 2 On February 20, 2020, the case was transferred to the District of Arizona. (Doc. 52 3 at 2). After arriving here, Judge Diane J. Humetewa ordered the parties to “refile Daubert 4 motions to only include factual information relevant to this Plaintiff and not other plaintiffs 5 who are not present in this case” by March 20, 2020. (Docs. 56; 60).2 On March 20, 2020, 6 AMS filed its four Daubert motions and Gomez filed three motions. (Docs. 61; 67; 72; 74). 7 Gomez filed responses for each of the four motions. (Docs. 80; 82; 83; 84). AMS failed to 8 file replies.3 9 In support of her motions, Gomez filed a variety of briefs taken from other MDLs 10 concerning different mesh products and manufacturers. Although the defendants in the 11 other MDLs relied on the same experts, the experts submitted different reports in each 12 MDL. Gomez filed three separate briefs4 regarding a single witness, Dr. Badylak, and a 13 brief taken from a separate MDL regarding Dr. Becker. In short, Gomez appears to have 14 paid little attention to what she was filing and disregarded the order requiring the motions be updated to reflect information specifically relevant to this case. 15 On April 3, 2020, AMS filed a Motion to Strike to the Daubert motions related to 16 Dr. Badylak and Dr. Becker. (Doc. 81). That motion argues the Daubert motions are 17 irrelevant to the case, undercut the purpose of MDLs, and prejudice AMS. (Doc. 81 at 5– 18 8). On August 31, 2020, AMS filed the Motion to Strike the Dr. Joslin Daubert motion in 19 this Court. (Doc. 91). That motion argues the Daubert motion was filed more than three 20 weeks late and includes a response on the merits of Gomez’ motion to exclude Dr. Joslin. 21 (Doc. 92 at 3–8). Gomez never responded to AMS’s Motion to Strike regarding Dr. Joslin 22

23 1 The MDL has consisted of numerous “waves” of cases. Each “wave” is virtually its own MDL with motions and orders that only apply to parties in that “wave.” Later “waves” 24 sometimes adopted motions from earlier “waves” to preserve legal resources. Here, however, Gomez attempts to include a Notice of Adoption from Wave 5 when Gomez’s 25 case was included in Wave 3 of the MDL. (Docs. 53 at 1; 35 at 1). 2 This case was reassigned to this Court on September 1, 2020. (Doc. 93). 26 3 AMS filed at least three replies in the MDL court but failed to refile the replies in this Court. (Docs. 58-9; 58-30; 58-34).4 Two of the briefs were taken from a separate MDL and 27 one from an early “Bellwether” case in this MDL, which featured an expert report not relevant to this case. 28 4 Two of the briefs were taken from a separate MDL and one from an early “Bellwether” case in this MDL, which featured an expert report not relevant to this case. 1 nor replied to AMS’s argument on the merits. 2 According to the current Scheduling Order, Motions in Limine are due March 11, 3 2021; a Joint Proposed Final Pretrial Order is due April 1, 2021; and the Final Pretrial 4 Conference is set for April 15, 2021. (Doc. 89). The Court has not yet set this matter for 5 trial. 6 LEGAL STANDARD 7 “It is well established that district courts have inherent power to control their 8 docket.” Ready Transp. v. AAR Mfg., 627 F.3d 402, 404 (9th Cir. 2010) (internal quotation 9 and citation omitted); see also Roadway Express. v. Piper, 447 U.S. 752, 764 (1980) (“The 10 inherent powers of federal courts are those which are necessary to the exercise of all 11 others.”) (internal quotation and citation omitted). Although Federal Rule of Civil 12 Procedure 12(f) provides authority only to strike pleadings, a district court has the inherent 13 power to strike a party’s submissions other than pleadings. N. Am. Specialty Ins. v. Nat'l 14 Fire & Marine Ins., No. 2:10-CV-01859-GMN, 2013 WL 1332205, at *5 (D. Nev. Apr. 2, 2013); see also AmTrust Bank v. Lewis, 687 F. App’x 667, 671 (9th Cir. 2017). 15 ANALYSIS 16 I. MOTIONS TO STRIKE 17 On April 3, 2020, AMS filed a Motion to Strike Gomez’s Daubert motions related 18 to Dr. Badylak and Dr. Becker. (Doc. 81). Gomez filed three briefs in support of her motion 19 to exclude Dr. Badylak: two from the different Boston Scientific vaginal mesh MDL and 20 the other from an early “Bellwether” case within the AMS MDL with an irrelevant expert 21 report. (Docs. 66-17; 69-1; 69-2). Gomez admits the expert opinions and reports in the 22 other MDL are not identical but argues there are no meaningful differences that render the 23 motions irrelevant. (Doc. 86 at 2). As for Dr. Becker, Gomez filed a brief from the different 24 Coloplast vaginal mesh MDL in support of her motion regarding Dr. Becker. 25 According to AMS, Gomez should have filed these motions in the MDL 26 proceedings and the failure to do so both undercuts the efficiency of MDL proceedings and 27 somehow prejudices AMS. AMS also argues the Daubert motions are irrelevant because 28 they relate to different “products,” “plaintiffs,” “expert reports and opinions,” “product 1 design,” “Material Safety Data Sheets,” and “mesh manufacturer.” (Doc. 81 at 5). 2 The Motion to Strike the Dr. Badylak and Dr. Becker Daubert motions will be 3 granted. Gomez’s motions were improperly filed. Filing three briefs in support of one 4 motion was improper. Filing briefs that pertained to different expert reports about different 5 products was improper, especially after the Court’s order to “only include factual 6 information relevant to this Plaintiff.” (Doc. 56). Failing to make a timely motion at the 7 MDL stage was improper. Moreover, the Court could not find Dr. Badylak or Dr. Becker’s 8 expert report for this case anywhere in the record. A court cannot rule on a motion without 9 having the relevant facts before it. The Court thus has no choice but to strike the motions 10 to exclude Dr. Badylak (Doc. 66) and Dr. Becker (Doc. 62) from the record. 11 However, the Court does not find that AMS would be prejudiced by late Daubert 12 motions. There are three months before Motions in Limine are due and four months before 13 the final pretrial conference. (Doc. 89). Further, the case has not yet been set for trial. As 14 discussed below, AMS has also failed to comply with orders and rules in this case. As such, the Court will allow Gomez a chance to refile motions to exclude Dr. Badylak and Dr. 15 Becker. Any such motion must pertain to the facts and law relevant to this case. That is, 16 Gomez must prepare motions specifically for this case. She cannot merely adopt the 17 briefing from other cases, involving different products and plaintiffs. 18 As to the Motion to Strike Gomez’s Daubert motion for Dr. Joslin, the motion will 19 be denied. On August 31, 2020, AMS filed a Motion to Strike Gomez’s Daubert motion 20 for Dr. Joslin because it was filed more than three weeks late. (Docs. 91; 92 at 1). AMS 21 does not allege prejudice and, in fact, AMS argues the merits of the Daubert motion in its 22 Motion to Strike. (Doc. 92 at 3–9). Because AMS does not allege prejudice, AMS’s Motion 23 to Strike (Doc. 91) the Daubert motion as to Dr. Joslin will be denied. 24 II. MISSING OR IMPROPER FILINGS 25 The attorneys for both parties have failed to fully comply with Court Orders and 26 rules in this case. Reply briefing is absent from all Daubert motions. Gomez did not 27 respond to AMS’s Motion to Strike the Daubert motion related to Dr. Debora L. Joslin. 28 (Doc. 91). Gomez improperly filed Daubert motions as to Dr. Badylak and Dr. Becker. 1 There are around 5,000 pages in total attached to all Daubert briefing. Court resources are 2 ill spent wading through thousands of irrelevant pages. By failing to file relevant motions 3 and exhibits, Gomez sent the Court on a fishing expedition to a lake with no fish. 4 Gomez’s filings have consistently failed to comply with Local Rules. (See e.g., Doc. 5 62). The Clerk has notified Gomez repeatedly of this failure, but Gomez has failed to 6 conform to the Rules in every subsequent filing. (See e.g., Doc. 86). 7 This Court will require the parties to strictly comply with all Local and Federal 8 Rules as well as the Orders of this Court. Now that this case is being prepared for trial, the 9 parties must focus their efforts on the particular allegations and facts involved here. 10 Because Gomez’s claims involve matters of Arizona law, the parties must focus on Arizona 11 law. Again, the parties shall also recognize that proceeding in the District of Arizona means 12 they must comply with the District of Arizona’s rules and procedures. Failure to comply 13 with all orders, rules, and procedures will result in sanctions, which may include granting 14 or denying motions, dismissal of claims or defenses, default judgment, or awards of attorneys’ fees. 15 Accordingly, 16 IT IS ORDERED AMS’s Motion to Strike (Doc. 81) the Daubert motions for Dr. 17 Stephen F. Badylak and Dr. Karen Backer is GRANTED. The Clerk of Court is to 18 STRIKE from the record Gomez’s Motion to Exclude the Testimony of Stephen F. 19 Badylak (Doc. 66) and Motion to Exclude Certain Opinions and Testimony of Dr. Karen 20 Becker (Doc. 62). 21 IT IS FURTHER ORDERED AMS’s Motion to Strike (Doc. 91) the Motion to 22 Exclude the Testimony of Debora L. Joslin, PH.D. is DENIED. The Motion to Strike 23 (Doc. 91) will be construed as AMS’s Response to Gomez’s Motion to Exclude (Doc. 24 70). 25 IT IS FURTHER ORDERED Gomez may file new Daubert motions as to Dr. 26 Badylak and Becker no later than December 21, 2020. Responses are due no later than 27 January 4, 2021 and replies are due no later than January 11, 2021. 28 … 1 IT IS FURTHER ORDERED the parties shall file replies to each of their 2|| pending Daubert motions no later than December 18, 2020. 3 Dated this 11th day of December, 2020. □□ Q - 6 □

7 Son sited ‘States Distact Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-7-