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