United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER . (DAUBERT MOTION RE:
DENISE ELSER, M.D.)
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the court is the Motion to Exclude Certain Opinions
and Testimony of Denise Elser, M.D. [ECF No. 76] filed by the
plaintiffs. The Motion is now ripe for consideration because
briefing is complete.
case resides in one of seven MDLs assigned to the Honorable
Joseph R. Goodwin 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”). This individual
case is one of a group of cases that the Clerk of the Court
reassigned to me on November 22, 2016. [ECF No. 67]. In the
seven MDLs, there are approximately 28, 000 cases currently
pending, approximately 17, 000 of which are in the Ethicon
MDL, MDL 2327.
to the reassignment, in an effort to efficiently and
effectively manage the massive Ethicon MDL, Judge Goodwin
decided to conduct pretrial discovery and motions practice on
an individualized basis so that once a case is trial-ready
(that is, after the court has ruled on all summary judgment
motions, among other things), it can then be promptly
transferred or remanded to the appropriate district for
trial. To this end, Judge Goodwin ordered the plaintiffs and
defendants to submit a joint list of 200 of the oldest cases
in the Ethicon MDL that name only Ethicon, Inc., Ethicon,
LLC, and/or Johnson & Johnson. These cases became part of
a “wave” of cases to be prepared for trial and,
if necessary, remanded. See Pretrial Order No. 206,
In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab.
Litig., No. 2:12-md-02327, Nov. 20, 2015,
The plaintiff's case was selected as an “Ethicon
Wave 2 case.”
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[, which] 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 ...