United States District Court, S.D. West Virginia, Charleston Division
January 6, 2017
IN RE ETHICON, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION
Ethicon, Inc., et al. Civil Action No. 2:12-cv-00779 THIS DOCUMENT RELATES TO Dee McBrayer, et al.
MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE:
HANNES VOGEL, M.D.)
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the Motion to Exclude the Opinions and
Testimony of Dr. Hannes Vogel [ECF No. 99] 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 “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).
bottom, the court has broad discretion to determine whether
expert testimony should be admitted or excluded.
Cooper, 259 F.3d at 200.
plaintiffs seek to exclude the testimony of Dr. Vogel because
he was not disclosed as a case-specific expert; instead, he
was disclosed as a supporting expert. The defendants concede
that they do not intend to call him at trial. Nevertheless,
the plaintiffs ask me to rule that Dr. Vogel's opinion
may not be brought up at trial. I previously ruled on a
similar issue in a telephonic conference in Funderburke
v. Ethicon, Inc., 2:12-cv-00957. See Resp. Ex. B, at
8:23-10:16 [ECF No. 112-1]. I determine, as I did in
Funderburke, that (1) other experts may rely on the
opinion of Dr. Vogel to formulate their opinions, (2) other
experts may not directly read the report into evidence, and
(3) other experts may not otherwise discuss Dr. Vogel's
qualifications at trial; however, any remaining issues
regarding the use of Dr. Vogel's testimony must be
reserved for trial. Accordingly, the plaintiff's Motion
is GRANTED to the extent they seek to prevent Dr. Vogel from
testifying at trial. All remaining issues are RESERVED for
court ORDERS that the Motion to Exclude the Opinions and
Testimony of Dr. Hannes Vogel [ECF No. 99] is GRANTED 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.