United States District Court, S.D. West Virginia, Charleston Division
IN RE BOSTON SCIENTIFIC CORP. PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION Case Number Case Name
DOCUMENT RELATES TO THE CASES ON THE ATTACHED EXHIBIT A
MEMORANDUM OPINION AND ORDER (DAUBERT MOTION RE: DR.
BRUCE ROSENZWEIG, M.D.)
R. GOODWIN UNITED STATES DISTRICT JUDGE
in In re Boston Scientific Corp., No. 2:12-md-2326,
MDL 2326, is the Defendant's Motion to Exclude the
General Causation Testimony of Dr. Bruce Rosenzweig, M.D.
filed by Boston Scientific Corporation (“BSC”).
[ECF No. 4813]. The Motion is now ripe for consideration
because the briefing is complete. As set forth below,
BSC's Motion is GRANTED.
group of cases 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 six remaining MDLs, there are
more than 17, 000 cases currently pending, approximately 3800
of which are in the BSC MDL, MDL No. 2326.
effort to manage the massive BSC MDL efficiently and
effectively, I decided to conduct pretrial discovery and
motions practice on an individualized basis. To this end, I
selected certain cases to become part of a “wave”
of cases to be prepared for trial and, if necessary,
the creation of a wave, I enter a docket control order
subjecting each active case in the wave to the same
scheduling deadlines, rules regarding motion practice, and
limitations on discovery. See, e.g., Pretrial Order
(“PTO”) # 165, In re Bos. Sci. Corp. Pelvic
Repair Sys. Prods. Liab. Litig., No. 2:12-md-02326, June
among the discovery rules imposed by the court is the
obligation of the parties to file Daubert motions
seeking to limit or exclude the testimony of general
causation experts in the main MDL, MDL 2326.
Federal Rule of Evidence 702, expert testimony is admissible
if it will “help the trier of fact to understand the
evidence or to determine a fact in issue” and (1) is
“based upon sufficient facts or data” and (2) is
“the product of reliable principles and methods,
” which (3) has been reliably applied “to the
facts of the case.” Fed.R.Evid. 702. A two-part test
governs the admissibility of expert testimony. The evidence
is admitted if it “rests on a reliable foundation and
is relevant.” Daubert v. Merrell Dow Pharm.,
509 U.S. 579, 597 (1993). The proponent of expert testimony
does not have the burden to “prove” anything.
However, he or she must “come forward with evidence
from which the court can determine that the proffered
testimony is properly admissible.” Md. Cas. Co. v.
Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998).
district court's role as gatekeeper is an important one.
“[E]xpert witnesses have the potential to be both
powerful and quite misleading”; the court must
“ensure that any and all scientific testimony . . . is
not only relevant, but reliable.” Cooper v. Smith
& Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001)
(citing Daubert, 509 U.S. at 588, 595; Westberry
v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999)). I “need not determine that the proffered expert
testimony is irrefutable or certainly correct. As with all
other admissible evidence, expert testimony is subject to
testing by ‘[v]igorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden
of proof.'” United States v. Moreland, 437
F.3d 424, 431 (4th Cir. 2006) (alteration in original)
(citation omitted) (quoting Daubert, 509 U.S. at
596); see also Md. Cas. Co., 137 F.3d at 783
(“All Daubert demands is that the trial judge
make a ‘preliminary assessment' of whether the
proffered testimony is both reliable . . . and
mentions specific factors to guide the overall relevance and
reliability determinations that apply to all expert evidence.
They include (1) whether the particular scientific theory
“can be (and has been) tested”; (2) whether the
theory “has been subjected to peer review and
publication”; (3) the “known or potential rate of
error”; (4) the “existence and maintenance of
standards controlling the technique's operation”;
and (5) whether the technique has achieved “general
acceptance” in the relevant scientific or expert
community. United States v. Crisp, 324 F.3d 261, 266
(4th Cir. 2003) (quoting Daubert, 509 U.S. at
these factors, “[t]he inquiry to be undertaken by the
district court is ‘a flexible one' focusing on the
‘principles and methodology' employed by the
expert, not on the conclusions reached.”
Westberry, 178 F.3d at 261 (quoting
Daubert, 509 U.S. at 594-95); see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)
(“We agree with the Solicitor General that ‘[t]he
factors identified in Daubert may or may not be
pertinent in assessing reliability, depending on the nature
of the issue, the expert's particular expertise, and the
subject of his testimony.'” (alteration in
original)); see also Crisp, 324 F.3d at 266 (noting
“that testing of reliability should be flexible and
that Daubert's five factors neither necessarily
nor exclusively apply to every expert”).
respect to relevancy, Daubert also explains:
Expert testimony which does not relate to any issue in the
case is not relevant and, ergo, non-helpful. The
consideration has been aptly described by Judge Becker as one
of “fit.” “Fit” is not always
obvious, and scientific validity for one purpose is not
necessarily scientific validity for other, unrelated
purposes. . . . Rule 702's “helpfulness”