United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Case Identified in Exhibit A attached hereto
C. CHAMBERS UNITED STATES DISTRICT JUDGE
MEMORANDUM OPINION AND ORDER (DAUBERT RULING RE: TERI
R. GOODWIN UNITED STATES DISTRICT JUDGE.
21, 2016, plaintiffs filed a Notice of Adoption of Prior
Daubert Motion of Terri Longacre, M.D. for Wave 2.
[ECF No. 2416]. The court ORDERS that the
Memorandum Opinion and Order (Daubert Motion re:
Teri Longacre, M.D.) [ECF No. 2643] entered on August 24,
2016 as to the Ethicon Wave 1 cases is ADOPTED
in the Wave 2 case identified in Exhibit A. The Memorandum
Opinion and Order (c Motion re: Teri Longacre, M.D.)
is attached hereto as Exhibit B.
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 case identified in the
Exhibit attached hereto.
Sandra Childress, et al. v. Johnson &
Johnson, et al.
OPINION AND ORDER (DAUBERT MOTION RE: TERI A. LONGACRE,
before the court is the Motion to Exclude or Limit the
Opinions and Testimony of Teri A. Longacre [ECF No. 2076]
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
75, 000 cases currently pending, approximately 30, 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 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
plunging into the heart of the Motion, a few preliminary
matters need to be addressed.
compelled to comment on the parties' misuse of my
previous Daubert rulings on several of the experts
offered in this case. See generally Sanchez v. Bos. Sci.
Corp., No. 2:12-cv-05762, 2014 WL 4851989 (S.D. W.Va.
Sept. 29, 2014); Tyree v. Bos. Sci. Corp., 54
F.Supp.3d 501 (S.D. W.Va. 2014); Eghnayem v. Bos. Sci.
Corp., 57 F.Supp.3d 658 (S.D. W.Va. 2014). The parties
have, for the most part, structured their Daubert
arguments as a response to these prior rulings, rather than
an autonomous challenge to or defense of expert testimony
based on its reliability and relevance. In other words, the
parties have comparatively examined expert testimony and have
largely overlooked Daubert's core considerations
for assessing expert testimony. Although I recognize the
tendency of my prior evidentiary determinations to influence
subsequent motions practice, counsels' expectations that
I align with these previous rulings when faced with a
different record are misplaced, especially when an expert has
issued new reports and given additional deposition testimony.
of my role as gatekeeper for the admission of expert
testimony, as well as my duty to “respect[ ] the
individuality” of each MDL case, see In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217,
1231 (9th Cir. 2006), I refuse to credit Daubert
arguments that simply react to the court's rulings in
Sanchez and its progeny. Indeed, I feel bound by
these earlier cases only to the extent that the expert
testimony and Daubert objections presented to the
court then are identical to those presented now. Otherwise, I
assess the parties' Daubert arguments anew. That
is, in light of the particular expert testimony and
objections currently before me, I assess “whether the
reasoning or methodology underlying the testimony is
scientifically valid” and “whether that reasoning
or methodology properly can be applied to the facts in
issue.” Daubert, 509 U.S. at 592-93. Any
departure from Sanchez, Eghnayem, or
Tyree does not constitute a “reversal”
of these decisions and is instead the expected result of the
parties' submission of updated expert reports and new
objections to the expert testimony contained therein.
I have attempted to resolve all possible disputes before
transfer or remand, including those related to the
admissibility of expert testimony pursuant to
Daubert. Nevertheless, in some instances I face
Daubert challenges where my interest in accuracy
counsels reserving ruling until the reliability of the expert
testimony may be evaluated at trial. At trial, the expert
testimony will be tested by precise questions asked and
answered. The alternative of live Daubert hearings
is impossible before transfer or remand because of the
numerosity of such motions in these seven related MDLs. As
these MDLs have grown and the expert testimony has
multiplied, I have become convinced that the ...