United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE:
RALPH ZIPPER, M.D.)
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is Defendant C.R. Bard, Inc.'s Motion to
Exclude or Limit Certain Opinions and Testimony of Ralph
Zipper, M.D. [ECF No. 32] filed by defendant C. R. Bard, Inc.
(“Bard”). The plaintiff did not file a response.
Thus, the Motion is ripe for adjudication.
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.
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 20 cases in the Bard MDL. The list included nearly 3,
000 cases. From these cases, I selected 332 cases to become
part of a “wave” of cases to be prepared for
trial and, if necessary, remanded. See Pretrial
Order No. 244, In re C. R. Bard, Inc. Pelvic Repair Sys.
Prods. Liab. Litig., No. 2:10md-02187, March 3, 2017,
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 5
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 v. Merrell 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
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 “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
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 (citations omitted).
bottom, the court has broad discretion to determine whether
expert testimony should be admitted or ...