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Nelson v. Johnson & Johnson

United States District Court, E.D. Wisconsin

October 7, 2019

KATHRYN M. NELSON, et al., Plaintiffs,
v.
JOHNSON & JOHNSON and ETHICON INC., Defendants.

          DECISION AND ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE.

         Plaintiff Kathryn Nelson alleges that she was injured as a result of the implantation of a Prolift device that is made by Defendants Johnson & Johnson, a New Jersey corporation, and Ethicon Inc., a New Jersey corporation and subsidiary of Johnson & Johnson. The case was conditionally remanded back to this court from the Southern District of West Virginia on April 26, 2019. When the case was remanded, there were a number of pending motions. On July 15, 2019, the court entered an order granting-in-part and denying-in-part Ethicon's motion for partial summary judgment. Dkt. No. 35. At a telephone conference held on July 24, 2019, the parties advised the court that the remaining pending motions-Nelson's motion to exclude certain opinions of Dr. Scott Serels, Ethicon's motion to exclude the supplemental expert report and opinions of Dr. Dionysios Veronikis, and Nelson's motion to strike Ethicon's non-retained experts-were ready for consideration. The parties had originally asked the court not to decide the motions until the parties determined if the additional medical treatment Nelson had received since the motions were fully briefed warranted any modification or supplementation to the motions. For the following reasons, Nelson's motion to exclude certain opinions will be denied, Ethicon's motion to exclude the supplemental report will be denied, and Nelson's motion to strike will be granted.

         BACKGROUND

         On May 14, 2009, Nelson underwent a total vaginal hysterectomy and an anterior and posterior colporrhaphy utilizing the total Prolift graft that was performed by Dr. Thomas Reinardy. In May of 2010, Nelson noticed that she had a severely foreshortened vagina and returned to Dr. Reinardy who diagnosed her with, among other things, a foreshortened vagina. Over the course of the next eighteen months, Nelson underwent multiple operative procedures to deal with the various complications she was experiencing and for partial mesh excision of the Prolift.

         LEGAL ANALYSIS

         A. Nelson's Motion to Exclude Certain Opinions of Dr. Scott Serels

         Nelson seeks to exclude the following three opinions of Dr. Scott Serels because she contends that the testimony fails to meet Rule 702's reliability criteria for expert testimony:

1) That the posterior portion of the Prolift mesh was implanted by Dr. Reinardy, the implanting surgeon, in a manner that caused twisting and bunching of the mesh near the apex of the vagina;
2) That placement of mesh in such a position was a cause of Ms. Nelson's foreshortened vagina; and
3) That this placement was “improper.”

Pl.'s Br., Dkt. No. 15 at 2.

         Under Rule 702, expert testimony is admissible if “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, ” “the testimony is based on sufficient facts or data, ” “the testimony is the product of reliable principles and methods, ” and “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. “Under the Daubert framework, the district court is tasked with determining whether a given expert is qualified to testify in the case in question and whether his testimony is scientifically reliable.” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). “The non-exclusive list of Daubert reliability factors for scientific evidence includes whether or not the theory or technique has been (1) tested, (2) subjected to peer review and publication, (3) analyzed for known or potential error rate, and/or is (4) generally accepted within the specific scientific field.” Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (citing Daubert, 509 U.S. at 593-94). “The court should also consider the proposed expert's full range of experience and training in the subject area, as well as the methodology used to arrive at a particular conclusion.” Gayton, 593 F.3d at 616 (citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). The district court has “wide latitude in performing its gatekeeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable.” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011).

         In his expert report, Dr. Serels opined that the symptoms Nelson has experienced since the implantation of the Prolift were not the result of defects in the mesh implants, but “were largely caused by the improper placement of the Prolift mesh at implant and complications.” Dkt. No. 19-1 at 22-23. In reaching this conclusion, Dr. Serels relied on notes from Dr. Reinardy, the implanting surgeon, that stated “I am kind of hoping that this is not in there a little too snuggly as she does seem to have a shortened vagina right now.” Id. at 22. Dr. Serels also relied on Dr. Rienardy's notes indicating bunching of the mesh at a follow-up visit with Nelson, and stated that bunching “only results from surgical placement.” Id. at 22. Dr. Serels pointed to Dr. Reinardy's testimony at deposition that “it was possible that the mesh was deployed at implant in a twisted position” as support for his opinion. Id.

         Dr. Serels' opinion that Nelson's symptoms are the result of improper placement of the Prolift mesh is based on reliable evidence, and thus is admissible under Rule 702. In his deposition, Dr. Serels testified that, in his experience, shortening of the vaginal canal “correlates with the material maybe being placed not quite at the apex and it creates a neo-apex in an area of the vaginal cuff that's in a location that's closer to the introitus than you'd like it to be.” Serels Dep. 114:10-14, Dkt. No. 14-1 at 69. Although he could not cite a study or treatise to support his opinion, id. at 124:24-125:3, Dkt. No. 14-1 at 71, Dr. Serels testified that he reached his decision based on his “experience with doing the procedure, experience with giving lectures, teaching courses, colleagues, conferences, [and] knowledge from the medical community.” Id. At 125:11-14. Dr. Serels stated that he has revised a lot of procedures that were the result of improper placement, although only roughly 20 of those were related to Prolift devices and ...


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