Stone et al v. Ethicon, Inc. et al, No. 2:2012cv00652 - Document 175 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER (Daubert Motion re: Stephen M. Factor, M.D.) The 134 Case Specific Daubert Motion to Exclude, or in the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor M.D. is DENIED in part and RESERVED in part, as more fully set forth herein. Signed by Judge Joseph R. Goodwin on 1/26/2017. (cc: counsel of record; any unrepresented party) (ts)
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Stone et al v. Ethicon, Inc. et al Doc. 175 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION IN RE: ETHICON, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION MDL No. 2327 ______________________________________________________________________________ THIS DOCUMENT RELATES TO: Maria Stone, et al. v. Ethicon, Inc., et al. Civil Action No. 2:12-cv-00652 MEMORANDUM OPINION AND ORDER (Daubert Motion re: Stephen M. Factor, M.D.) Pending before the court is the Case Specific Daubert Motion to Exclude, or in the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor M.D. [ECF No. 134] filed by the plaintiffs. The Motion is now ripe for consideration because briefing is complete. I. Background This 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 60,000 cases currently pending, approximately 28,000 of which are in this MDL, which involves defendants Johnson & Johnson and Ethicon, Inc. (collectively “Ethicon”), among others. In this MDL, the court’s tasks include “resolv[ing] pretrial issues in a timely and expeditious manner” and “resolv[ing] important evidentiary disputes.” Barbara Dockets.Justia.com 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 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. 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, 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 2 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 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 cannot be ruled out or determining which of those that cannot be excluded is the most likely. Id. at 262 (citations omitted). Defendants, however, need not conduct a differential diagnosis to identify the specific cause of an injury because they do not bear the burden of proving causation. See 3 David Faigman et al. Modern Sci. Evidence § 21:6 (2015-2016 ed.). Indeed, a defendant’s specific causation expert’s testimony should not be excluded because it fails to identify the specific cause of a plaintiff’s injury. See Yang v. Smith, 728 S.E.2d 3 794, 800 (Ga. Ct. App. 2012) (refusing to exclude defendant’s specific causation expert testimony where that testimony did not identify an injury’s specific cause because the defendant had no burden to prove the specific cause of the injury). In lieu of conducting traditional differential diagnoses, defendants may instead provide expert testimony suggesting alternative causes for the plaintiff’s injury in order to rebut the plaintiff’s specific causation testimony. See Westberry, 178 F.3d at 265 (“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.’” (citations omitted)); see also Faigman, supra, at § 21:4 (“Sometimes, the courts subtly shift the burden of production onto the defendant when determining whether the [plaintiff’s] expert has done a sufficient job in ruling out other causes.”). At bottom, the court has broad discretion to determine whether expert testimony should be admitted or excluded. Cooper, 259 F.3d at 200. III. Discussion The plaintiffs first argue the Dr. Factor’s testimony must be excluded because he did not create the slides he reviewed and he only reviewed the slides that were stained. However, this does not render Dr. Factor’s review of the slides faulty, and it certainly does not indicate that he failed to consider sufficient evidence. The plaintiffs are, of course, permitted to explore any perceived deficiencies in Dr. Factor’s testimony using cross-examination. The plaintiff’s Motion on this point is DENIED. 4 Next, the plaintiffs argue that Dr. Factor is unqualified to testify as to neuropathological issues and improperly relies on the report of another expert. First, Dr. Factor has sufficient experience to testify as to neuropathological issues. Second, I have previously ruled that experts may properly rely on the reports of other experts. See Resp. Ex. C, at 8:23–10:16 [ECF No. 134-3]. I hold the same here. The plaintiffs’ Motion on this point is DENIED. Next, the plaintiffs argue that Dr. Factor’s testimony should be excluded because he did not review every material on his expansive “reliance list.” I will not exclude Dr. Factor’s testimony because he failed to review one of the over six hundred resources—resources that he has utilized at one point in his career or another—for this specific case. In addition to attacking minutia, plaintiffs’ argument utterly lacks legal support. The plaintiffs’ Motion on this point is DENIED. Finally, the plaintiffs ask that I curtail Dr. Factor’s testimony attacking Dr. Iakovlev’s methods. I will not do so based on an isolated line from a deposition. The plaintiffs are free to attack any perceived deficiencies on cross-examination. The plaintiffs’ Motion on this point is DENIED, and any remaining issues are RESERVED for trial. IV. Conclusion The court ORDERS that the Case Specific Daubert Motion to Exclude, or in the Alternative, to Limit the Opinions and Testimony of Stephen M. Factor MD [ECF No. 134] is DENIED in part and RESERVED in part. 5 The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 6 January 26, 2017
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