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Cooper v. Johnson & Johnson

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

December 12, 2017

JENNIFER COOPER, et al., Plaintiffs,
v.
JOHNSON & JOHNSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER . (DAUBERT MOTION RE: DENISE ELSER, M.D.)

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Background

         This 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.

         Prior 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, http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff's case was selected as an “Ethicon Wave 2 case.”

         II. Legal Standard

         By now, 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.

         Expert 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 scientific community.

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).

         In the 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 ...

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