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In re Ethicon Inc. Pelvic Repair Systems Product Liability Litigation

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

December 12, 2017

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

          ORDER ADOPTING MEMORANDUM OPINION AND ORDER (DAUBERT RULING RE: HOWARD JORDI, PH.D.)

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         On July 21, 2016, defendants filed a Notice of Adoption of Ethicon's Motion to Exclude the Opinions and Testimony of Howard Jordi, PH.D. Filed in Wave 1 [ECF No. 2406]. The court ORDERS that the Memorandum Opinion and Order (Daubert Motion re: Howard Jordi, Ph.D.) [ECF No. 2699] entered on August 31, 2016 as to the Ethicon Wave 1 cases[1] is ADOPTED in the Wave 2 cases identified in Exhibit A. The Memorandum Opinion and Order (Daubert Motion re: Howard Jordi, Ph.D.) is attached hereto as Exhibit B.

         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

12-cv-01564

Sandra Childress, et al. v. Johnson & Johnson, et al.

12-cv-01660

Jennifer Cooper, et al. v. Johnson & Johnson, et al.

12-cv-01495

Diann Martin, et al. v. Ethicon, Inc., et al.

12-cv-01562

Melissa Sanders, et al. v. Johnson & Johnson, et al.

12-cv-01662

Nancy Smallwood, et al. v. Ethicon, Inc., et al.

         IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

         IN RE: ETHICON INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION

         THIS DOCUMENT RELATES TO:

         Cases Identified in the Exhibit Attached Hereto

         MDL No. 2327

         MEMORANDUM OPINION AND ORDER (Daubert Motion re: Howard Jordi, Ph.D.)

         Pending before the court is the Motion to Exclude the Opinions and Testimony of Howard Jordi, Ph.D. [ECF No. 1983] filed by 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.

         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. Preliminary Matters

         Before plunging into the heart of the Motion, a few preliminary matters need to be addressed.

         I am 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 ...


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