Wilder v. Ethicon, Inc.

MARBETH WILDER, Plaintiff, v. ETHICON, INC., et al., Defendants.

No. 2:20-CV-141-KAC-HBG

United States District Court, E.D. Tennessee, Greeneville

September 21, 2021

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Defendants' Motion to Limit the Case-Specific Testimony of Bruce Rosenzweig, M.D. (“Motion to Limit”) [Doc. 90] and Plaintiff's Motion to Exclude Certain Case Specific Opinions and Testimony of Dr. Lee Congleton (“Motion to Exclude”). [Doc. 92]. The parties appeared before the undersigned for a motion hearing on July 2, 2021. Attorneys Adam Davis and Diane Watkins appeared on behalf of Plaintiff. Attorneys Amy Pepke and Kari Sutherland appeared on behalf of Defendants. Accordingly, for the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Limit [Doc. 90] and DENIES Plaintiff's Motion to Exclude [Doc. 92].

I. BACKGROUND

In December 2011, Plaintiff underwent an operation at Harton Regional Medical Center in Tullahoma, Tennessee, performed by Dr. Murphy to implant a medical device, TVT-O device (“Device”). [Doc. 1]. Plaintiff alleges that she sustained various injuries because of the Device, including pelvic pain and urinary tract infections (“UTIs”). Plaintiff has pending claims against Defendants for negligence, strict liability for failure to warn, strict liability for defective product, strict liability for design defect, common law fraud, fraudulent concealment, constructive fraud, negligence misrepresentation, negligent infliction of emotional distress, breach of express and implied warranty, gross negligence, punitive damages, and discovery rule and tolling. See [id.].

Relevant to the instant matter, Plaintiff has retained Bruce Rosenzweig, M.D., a urogynecologist, to provide case-specific expert testimony, and Defendants have retained a urologist Lee Congleton, M.D., to provide expert opinions in this matter. Each party has challenged the opposing party's expert's opinions.

II. STANDARD OF REVIEW

“Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or evidence admitted is relevant and reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993)). Specifically, Rule 702 provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

In Daubert, the Supreme Court of the United States stated that a district court, when evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. The Daubert standard “attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science' on the other.” Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009).

The factors relevant in evaluating the reliability of the testimony, include: “whether a method is testable, whether it has been subjected to peer review, the rate of error associated with the methodology, and whether the method is generally accepted within the scientific community.” Coffey v. Dowley Mfg., Inc., 187 F.Supp.2d 958, 970-71 (M.D. Tenn. 2002) (citing Daubert, 509 U.S. at 593-94). Rule 702 inquiry as “a flexible one, ” and the Daubert factors do not constitute a definitive checklist or test. Kumho Tire Co., 526 U.S. at 138-39 (citing Daubert, 509 U.S. at 593); see also Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (explaining that these factors “are simply useful signposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted”).

“Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge.” Rose v. Sevier Cty., Tenn., No. 3:08-CV-25, 2012 WL 6140991, at *4 (E.D. Tenn. Dec. 11, 2012) (citing Kumho Tire Co., 526 U.S. at 138-39). “[A] party must show, by a ‘preponderance of proof,' that the witness will testify in a manner that will ultimately assist the trier of fact in understanding and resolving the factual issues involved in the case.” Coffey, 187 F.Supp.2d at 70-71 (quoting Daubert, 509 U.S. at 593-94). The party offering the expert has the burden of proving admissibility. Daubert, 509 U.S. at 592 n. 10.

Moreover, the Supreme Court has explained that in determining “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact, ” the court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and whether it can properly be applied to the facts in issue.” Id. at 592-93. “Furthermore, the court must examine the expert's conclusions in order to determine whether they can reliably follow from the facts known to the expert and the methodology used.” In re Diet Drugs, No. MDL 1203, 2001 WL 454586, at *7 (E.D. Pa. Feb. 1, 2001) (citing Heller, 167 F.3d at 153).

Further, a court should “exclude proffered expert testimony if the subject of the testimony lies outside the witness's area of expertise.” In re Diet Drugs, 2001 WL 454586, at *7 (quoting 4 Weinstein's Fed. Evid. § 702.06[1], at 702-52 (2000)). This simply means that “a party cannot qualify as an expert generally by showing that the expert has specialized knowledge or training which would qualify him or her to opine on some other issue.” Id. (other citations omitted).

Finally, “the court will not exclude expert testimony merely because the factual bases for an expert's opinion are weak.” Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir. 2012) (quotation marks and citations omitted). Exclusion is the exception, not the rule, and “the gatekeeping function established by Daubert was never ‘intended to serve as a replacement for the adversary system.'” Daniels v. Erie Ins. Group, 291 F.Supp.3d 835, 840 (M.D. Tenn. Dec. 4, 2017) (quoting Rose v. Matrixx Initiatives, Inc., No. 07-2404-JPM/tmp, 2009 WL 902311, at *7 (W.D. Tenn. March 31, 2009)) (other quotations omitted). Rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. Rule 702 does not “require anything approaching absolute certainty.” Daniels, 291 F.Supp.3d at 840 (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671-72 (6th Cir. 2010)).

III. ANALYSIS

The Court has considered the parties' positions and the oral arguments presented at the hearing. Accordingly, for the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion [Doc. 90] and DENIES Plaintiff's Motion [Doc. 92].

The Court will first address Defendants' challenges to Dr. Rosenzweig's opinions and then turn to Plaintiff's challenges to Dr. Congleton's opinions.

A. Dr. Rosenzweig

Defendants assert five challenges to Dr. Rosenzweig's testimony. First, Defendants argue that Dr. Rosenzweig's opinions regarding alternatives to the Device should be excluded as they do not constitute safer alternative designs. Second, Defendants argue that Dr. Rosenzweig's opinions concerning degradation, deformation, and other alleged characteristics of the Device should be excluded because they are unreliable. Third, Defendants state that Dr. Rosenzweig should not be allowed to speculate on what Plaintiff's implanting physician knew prior to the surgery. Fourth, Defendants argue that Dr. Rosenzweig cannot render any legal conclusions. Finally, Defendants assert that Dr. Rosenzweig cannot testify as to the reasonableness and necessity of Plaintiff's medical charges.

The Court will consider these challenges separately.

1. Alternatives to the Device

Defendants argue that Dr. Rosenzweig's opinions regarding alternatives to the Device should be excluded because he identifies procedures and not safer alternative designs. Defendants state that Plaintiff is not required to present proof of an alternative design under Tennessee law, but should she choose to do so, the proof must be relevant, citing to King v. Danek Medical, Inc., 37 S.W.3d 429 (Tenn. Ct App. 2000). Defendants argue that the MDL court precluded another expert from offering a similar opinion.

Plaintiff agrees that Tennessee law does not require her to prove the existence of a safer alternative design to establish a prima facie case under the Tennessee Products Liability Act. Plaintiff argues, however, that Dr. Rosenzweig's proposed alternatives are relevant for other reasons. For example Plaintiff contends that in states that allow claims based on design defects, the existence of an alternative procedure is relevant to the utility of the design and whether there was a better way to solve the problem the Device is supposed to treat. In addition, Plaintiff states that the alternatives bear on whether it was reasonable to bring the Device into the market and to rebut Defendants' assertion that...