Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Degarmo v. C. R. Bard, Inc.

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

February 2, 2018

NORA DEGARMO, Plaintiff,
v.
C. R. BARD, INC., Defendant.

          MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE: WILLIAM PORTER, M.D.)

          JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

         Pending before the court is the Motion to Exclude the Opinions of William Porter, M.D. [ECF No. 20] filed by defendant C. R. Bard, Inc. (“Bard”). The plaintiff has not responded to the Motion, and the time for responding has expired. Thus, the Motion is ripe for adjudication.

         I. BACKGROUND

         This case resides in one of seven MDLs assigned to me by the Judicial Panel on Multidistrict Litigation (“MDL”) 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 24, 000 cases currently pending, approximately 3, 000 of which are in the Bard MDL, MDL No. 2187.

         In an effort to manage the massive Bard MDL efficiently and effectively, the court decided to conduct pretrial discovery and motions practice on an individualized basis. To this end, I ordered the plaintiffs and defendants to submit a joint list of remaining cases in the Bard MDL, MDL 2187, with claims against Bard and other defendants where counsel has at least twenty cases in the Bard MDL. The list included nearly 3000 cases. From these cases, I selected 333 cases to become part of a “wave” of cases to be prepared for trial and, if necessary, remanded. See Pretrial Order No. 236, In re C. R. Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10md-02187, Jan. 27, 2017, https://www.wvsd.uscourts.gov/MDL/2187/orders.html. Upon the creation of a wave, a docket control order subjects each active case in the wave to the same scheduling deadlines, rules regarding motion practice, and limitations on discovery. I selected the instant civil action as a Wave 4 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 v. Merre l Dow Pharm., Inc., 509 U.S. 579, 597 (1993). 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 “a reliable differential diagnosis 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 cannot be ruled out or determining which of those that cannot be excluded is the most likely.

Id. at 262 (citations omitted). “A differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation.” Id. at 265. However, an expert's causation opinions will not be excluded “because he or she has failed to rule out every possible alternative cause of a plaintiff's illness.” Id. “The alternative causes suggested by a defendant ‘affect the weight that the jury should give the expert's testimony and not the admissibility of that testimony, ' unless the expert can offer ‘no explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.'” Id. at 265 (alteration in original) (citations omitted).

         At bottom, the court has broad discretion to determine whether expert testimony should be admitted or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.