United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION
Johnson & Johnson, et al. Civil Action 2:12-cv-01564 THIS DOCUMENT RELATES TO: Sandra Childress, et al.
MEMORANDUM OPINION AND ORDER (DAUBERT MOTION
RE: TERI LONGACRE, M.D.)
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
before the court is the Motion to Exclude Case Specific
Expert Testimony of Dr. Teri Longacre [ECF No. 83] 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. 101]. In the
seven MDLs, there are approximately 28, 000 cases currently
pending, approximately 17, 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 Pharm., 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 general causation Daubert motions in the
main MDL and specific causation Daubert motions,
responses, and replies in the individual member cases. To the
extent that an expert is both a general and specific
causation expert, the parties were advised that that they
could file a general causation motion in the main MDL 2327
and a specific causation motion in an individual member case.
PTO No. 217, at 4.
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 ...