United States District Court, S.D. West Virginia, Charleston Division
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: Daniel Elliot, M.D.)
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
21, 2016, the defendants filed a Notice of Adoption of Prior
Daubert Motion of Daniel Elliot, M.D. for Wave 2.
[ECF No. 2433]. The court ORDERS that the
Memorandum Opinion and Order (Daubert Motion re:
Daniel Elliot, M.D.) [ECF No. 2666] (“Prior
Order”) entered on August 26, 2016,  as to the Ethicon
Wave 1 cases is ADOPTED in the Wave 2 cases
identified in Exhibit A. The Prior Order is attached hereto
as Exhibit B.
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
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.
Sandra Childress, et al. v. Johnson & Johnson,
Jennifer Cooper, et al. v. Johnson & Johnson,
Diann Martin, et al. v. Ethicon, Inc., et al.
Nancy Smallwood, et al. v. Ethicon, Inc., et al.
OPINION AND ORDER (Daubert Motion re: Daniel
before the court is the Motion to Exclude Certain General
Opinions of Daniel Elliott, M.D. [ECF No. 2082] filed by
Johnson & Johnson and Ethicon, Inc. (collectively
“Ethicon”). 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.
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. 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
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 critical
gatekeeping function permitting or denying expert testimony
on decisive issues in these cases is best made with a live
expert on the witness stand subject to vigorous examination.
course of examining a multitude of these very similar cases
involving the same fields of expertise, I have faced
irreconcilably divergent expert testimony offered by
witnesses with impeccable credentials, suggesting, to me, an
unreasonable risk of unreliability. The danger-and to my
jaded eye, the near certainty-of the admission of “junk
science” looms large in this mass litigation.
parties regularly present out-of-context statements,
after-the-fact rationalizations of expert testimony, and
incomplete deposition transcripts. This, combined with the
above-described practice of recycling expert testimony,
objections, and the court's prior rulings, creates the
perfect storm of obfuscation. Where further clarity is
necessary, I believe it can only be achieved through live
witness testimony- not briefing-I will therefore reserve
ruling until expert testimony can be evaluated firsthand.
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