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In re Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation

United States District Court, S.D. West Virginia, Charleston Division

March 29, 2017

IN RE ETHICON INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION THIS DOCUMENT RELATES TO Wave 2 s Identified in Exhibit A attached hereto

          MEMORANDUM OPINION AND ORDER (DAUBERT RULING RE: KONSTANTIN WALMSLEY, M.D.)

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending before the court are the defendants' two identical motions entitled Motion to Exclude General-Causation Testimony of Konstantin Walmsley, M.D. [ECF Nos. 2447 and 2451] filed on July 21, 2016. The defendants filed a memorandum of law for [ECF No. 2451] only. The plaintiffs did not file a response to either motion. The court ORDERS that the defendants' Motion [ECF No. 2447] is DENIED as moot. For reasons appearing to the court, the court ORDERS that the Memorandum Opinion and Order (Daubert Motion re: Konstantin Walmsley, M.D.) [ECF No. 2652] (“Prior Order”) entered on August 25, 2016, as to the Ethicon Wave 1 cases is ADOPTED in the Wave 2 cases identified in Exhibit A.[1] The Prior Order is attached hereto as Exhibit B.

         Importantly, the court notes that the expert opinions proffered in Wave 1 are in almost every respect identical to those proffered here. The court has found, however, that with each entered Order, the experts in these cases attempt to bolster or fine-tune the support for their opinions, but the opinions themselves do not change. Accordingly, the court will refrain from engaging in the extremely inefficient practice of continuously reexamining the qualifications, reliability, and relevance of dozens of experts and their numerous opinions. While the parties continue to challenge even the slightest alteration to the underlying support for an expert's opinion, the court's review of the parties' arguments reveals that these refreshed Daubert challenges are different from previous arguments by only the very slightest of degrees. The court FINDS that to the extent that the parties raise arguments not previously addressed by the court's Prior Order, the trial judge may easily resolve these issues at trial without the need for further briefing or an evidentiary hearing. Accordingly, the court ORDERS that to the extent that the parties raise Daubert challenges not previously addressed in the court's Prior Order-fully adopted herein-those challenges are RESERVED for trial.

         The court DIRECTS the Clerk to file a copy of this Order Adopting Memorandum Opinion and Order in 2:12-md-2327 and in the Ethicon Wave 2 cases identified in the Exhibit attached hereto.

         EXHIBIT A

         LIST OF CASES TO WHICH MOTION TO EXCLUDE GENERAL-CAUSATION TESTIMONY OF KONSTANTIN WALMSLEY, M.D. APPLIES*

         1. Pamela Bailey, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01700 (TVT)

         2. Patricia Lindberg, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-01637 (TVT Secur)

         3. Kristy Manor, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-02137 (TVT-O)

         4. Patricia Martin, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-02185 (TVT-O)

         5. Hope Pridmore, et al. v. Ethicon, Inc., et al., Civil Action No. 2:12-cv-02190 (TVT-O)

         * Defendants reserve the right to supplement this list should any plaintiff designate Dr. Walmsley as a general-causation expert in MDL Wave 2.

         MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE: KONSTANTIN WALMSLEY, M.D.)

         Pending before the court is the Motion to Exclude General Causation Testimony of Konstantin Walmsley, M.D. [ECF No. 1998] filed by defendants Johnson & Johnson and Ethicon Inc. (collectively “Ethicon”). The Motion is now ripe for consideration because briefing is complete.

         I. Background

         This 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 75, 000 cases currently pending, approximately 30, 000 of which are in this MDL, which involves defendants Johnson & Johnson and Ethicon Inc.

         In this 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 only one Daubert motion per challenged expert, to file each motion in the main MDL-as opposed to the individual member cases-and to identify which cases would be affected by the motion. PTO No. 217, at 4.[1]

         II. ...


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