United States District Court, S.D. West Virginia, Charleston Division
December 14, 2016
IN RE ETHICON, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION
Ethicon, Inc., et al. Civil Action No. 2:12-cv-00738 THIS DOCUMENT RELATES TO: Sheri Scholl
MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE:
JAIME SEPULVEDA, M.D.)
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the Motion to Exclude Certain Opinions
and Testimony of Jaime Sepulveda, M.D. [ECF No. 91] filed by
the plaintiffs. The Motion is now ripe for consideration
because briefing is complete.
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
58, 000 cases currently pending, approximately 28, 000 of
which are in this MDL, which involves defendants Johnson
& Johnson and Ethicon, Inc. (collectively
“Ethicon”), among others.
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. 217, 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. 217, at 4.
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.
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).
context of specific causation expert opinions, the Fourth
Circuit has held that plaintiffs may use “a reliable
differential diagnosis [to provide] 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).
however, need not conduct a differential diagnosis to
identify the specific cause of an injury because they do not
bear the burden of proving causation. See 3 David
Faigman et al. Modern Sci. Evidence § 21:6
(2015-2016 ed.). Indeed, a defendant's specific causation
expert's testimony should not be excluded because it
fails to identify the specific cause of a plaintiff's
injury. See Yang v. Smith, 728 S.E.2d 794, 800
(Ga.Ct.App. 2012) (refusing to exclude defendant's
specific causation expert testimony where that testimony did
not identify an injury's specific cause because the
defendant had no burden to prove the specific cause of the
injury). In lieu of conducting traditional differential
diagnoses, defendants may instead provide expert testimony
suggesting alternative causes for the plaintiff's injury
in order to rebut the plaintiff's specific causation
testimony. See Westberry, 178 F.3d at 265
(“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.'” (citations omitted)); see
also Faigman, supra, at § 21:4
(“Sometimes, the courts subtly shift the burden of
production onto the defendant when determining whether the
[plaintiff's] expert has done a sufficient job in ruling
out other causes.”).
bottom, the court has broad discretion to determine whether
expert testimony should be admitted or excluded.
Cooper, 259 F.3d at 200.
other things, the plaintiff argues that Dr. Sepulveda's
opinions are speculative and based on assumptions. However,
so long as the defense specific causation expert's
opinion is a product of his specialized knowledge or training
and is reliably grounded, it is admissible to rebut the
plaintiff's specific causation expert.
Dr. Sepulveda is a urogynecologist with over twenty years of
relevant experience. Resp. 1 [ECF No. 98]. Dr.
Sepulveda's expert report and deposition testimony show
that he conducted a detailed review of the plaintiff's
medical records. Dr. Sepulveda conducted a thorough,
reliably-grounded analysis of the medical evidence and
determined that the plaintiff's proffered specific cause
was unlikely. He need not take an additional step and prove
that another alternative cause caused the plaintiff's
injury; causation is the plaintiff's burden. To the
extent the plaintiff believes that Dr. Sepulveda's
testimony is flawed, she may address those issues on
cross-examination and with the testimony of her own specific
causation witness. Therefore, the plaintiff's Motion on
this point is DENIED.
plaintiff also objects to Dr. Sepulveda's opinion at his
deposition regarding the cause of her fecal incontinence.
However, Dr. Sepulveda's testimony was based on facts
that the plaintiff did not disclose to him at the time of his
initial report. Furthermore, Ethicon concedes that it will
only offer those opinions to rebut any testimony regarding
fecal incontinence. Resp. 6. Therefore, the plaintiff's
Motion on this point is also DENIED, and any remaining issues
are RESERVED for trial.
court ORDERS that the Motion to Exclude Certain Opinions and
Testimony of Jaime Sepulveda, M.D. [ECF No. 91] is DENIED in
part and RESERVED in part.
court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented party.