Cooper v. Johnson & Johnson ( 2017 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION JENNIFER COOPER, et al., Plaintiffs, v. CIVIL ACTION NO. 2:12-cv-01660 JOHNSON & JOHNSON, et al., Defendants. MEMORANDUM OPINION AND ORDER ( Motion re: Denise Elser, M.D.) Pending before the court is the Motion to Exclude Certain Opinions and Testimony of Denise Elser, M.D. [ECF No. 76] 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 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. 67]. In the seven MDLs, there are approximately 28,000 cases currently pending, approximately 17,000 of which are in the Ethicon MDL, MDL 2327. Prior to the reassignment, in an effort to efficiently and effectively manage the massive Ethicon MDL, Judge Goodwin decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all summary judgment motions, among other things), it can then be promptly transferred or remanded to the appropriate district for trial. To this end, Judge Goodwin ordered the plaintiffs and defendants to submit a joint list of 200 of the oldest cases in the Ethicon MDL that name only Ethicon, Inc., Ethicon, LLC, and/or Johnson & Johnson. These cases became part of a “wave” of cases to be prepared for trial and, if necessary, remanded. Pretrial Order No. 206, , No. 2:12-md-02327, Nov. 20, 2015, http://www.wvsd.uscourts.gov/MDL/ethicon/orders.html. The plaintiff’s case was selected as an “Ethicon Wave 2 case.” II. Legal Standard By now, the parties should be intimately familiar with Rule 702 of the Federal Rules of Evidence and , 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; , 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 scientific community. , 259 F.3d 194, 199 (4th Cir. 2001) (citing , 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. , 509 U.S. at 595; , 525 U.S. 137, 141, 150 (1999). Finally, and simply, relevance turns on whether the expert testimony relates to any issues in the case. , , 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.” , 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. . 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. 3 David Faigman et al. § 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. , 728 S.E.2d 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. , 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 ‘ explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.’” (citations omitted)); Faigman, , 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. , 259 F.3d at 200. III. Discussion The plaintiffs first argue that I should exclude Dr. Elser’s opinions regarding Ms. Cooper’s dysuria and “potential” diabetic neuropathy because those opinions are unsupported by evidence and Dr. Elser lacks specialized knowledge necessary to offer those opinion. After reviewing the record, I find that Dr. Elser’s opinion is sufficiently supported to move forward and Dr. Elser has sufficient specialized training to offer that opinion. The plaintiffs’ Motion is DENIED on this point. The plaintiffs also argue that I should preclude Dr. Elser from opining on any alternative causes of Ms. Cooper’s vaginal pain, “other than pelvic floor hypertonicity.” The plaintiffs argue that Dr. Elser did not conduct a proper differential diagnosis. I disagree. Dr. Elser’s expert report and deposition testimony show that she conducted a detailed review of the plaintiff’s medical records and performed a physical examination of the plaintiff. Dr. Elser considered numerous alternative causes for the plaintiff’s injuries and explained her reasons for ruling out those alternative causes. That Dr. Elser also identified some of those alternative causes as potential contributing causes of Ms. Cooper’s pain does not render the differential diagnosis unreliable. To the extent the plaintiffs seek to question the accuracy of Dr. Elser’s diagnosis, they may do so at trial. The plaintiffs’ Motion on this point is DENIED. Finally, the plaintiffs argue that I should exclude Dr. Elser’s testimony regarding Ms. Cooper’s previous diagnoses and treatments of recurrent urinary tract infections (“UTIs”). The plaintiffs argue that, because Dr. Elser does not opine that the physicians who diagnosed and treated Ms. Cooper’s recurrent UTIs breached the standard of care, Dr. Elser should not be permitted to opine that any of these previous diagnoses or treatments were “incorrect, improper or inappropriate.” However, Dr. Elser is not required to opine that other physicians breached the standard of care in order to opine on their diagnoses or treatments. Accordingly, the plaintiffs’ Motion on this point is DENIED, and any remaining issues are RESERVED for trial. IV. Conclusion The court ORDERS that the Motion to Exclude Certain Opinions and Testimony of Denise Elser, M.D. [ECF No. 76] is DENIED in part and RESERVED in part. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: December 12, 2017 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE