The remanded pelvic mesh case, Sherer-Smith v. C.R. Bard, Inc., was recently wiped from the docket by summary judgment. See 2020 WL 1470962 (W.D. Wis. March 26, 2020). That’s news because, except for a couple of odd-ball cases (see Gray v. C. R. Bard, Inc., 2019 WL 6521972 (S.D.W. Va. Dec. 3, 2019) (unopposed motion; no expert), and Kelly v. C. R. Bard, Inc., 2019 WL 6699792 (W.D. Tex. Dec. 9, 2019) (statute of limitations; no opposing evidence)), Sherer-Smith appears to be this defendant’s first complete summary judgment on an opposed motion in litigation involving this product.
Here’s what happened. First, Sherer-Smith is itself a bit of an oddball case, in that the plaintiff was implanted with mesh manufactured by two different companies (both originally defendants) in three surgeries. 2020 WL 1470962, at *1. Four mesh products were implanted in the first and third surgeries – all made by another defendant – and one mesh product by the moving defendant was implanted in the second surgery. Id. Second, plaintiff took the money and ran as to the other defendant, settling in the MDL. Id. at *2. Third, before settling, plaintiff submitted a causation expert report in the MDL, but that report focused on the other defendant (and its four implanted products), and treated the moving defendant as more or less an afterthought. Id. at *5. Item number three ultimately proved fatal.
As is routine in prescription medical product liability litigation, plaintiff’s expert purported to rely on “differential etiology.” Id. That was a problem, because after having written a report that targeted a different defendant, with only a passing comment that plaintiff’s claimed injuries were “likely exacerbated by the [moving defendant’s] implant,” id. at *4, there was no way to pivot (at this late date) and “rule in” purported causal effects of the moving defendant’s product. Plaintiff’s expert’s “failure to do so is tantamount to ignoring an obvious alternative explanation.” Id. at *5
[The expert] provided no basis for his decision to rule in the [defendant’s] mesh as a cause of [plaintiff’s] injuries. [He] acknowledged that he could not determine how much the [defendant’s] mesh contributed to [plaintiff’s] symptoms. . . . [He] cites other experts in the MDL to establish a general theory of causation, according to which transvaginal mesh surgery can sometimes cause symptoms such as those experienced by [plaintiff]. For example, [he] cites one study that found [a symptom] following mesh surgery in 36 percent of cases. Of course this finding means that [this symptom] did not result in two-thirds of cases. So the MDL experts’ theory of general causation cannot support a reasonable conclusion that the [defendant’s] mesh was, more likely than not, a substantial factor in causing [plaintiff’s] injuries.
Id. (record citations omitted). Thus, the expert’s opinion concerning the moving defendant’s mesh was “merely ipse dixit.” Id. With no causation expert left, plaintiff could not avoid summary judgment against the “design defect” theory that has always been the mesh plaintiffs’ silver bullet in this litigation. Id.
The warning claims failed, too, as another pelvic mesh plaintiffs’ standby – an overhyped (and hearsay) raw materials supplier’s CYA document – couldn’t overcome this plaintiff’s lack of causation. See id. (Plaintiff argued a warning defect in that “the plastic manufacture did not consider its product suitable for surgical implantation”). Causation must always be proven. “Causation is also an element of a failure to warn claim.” Id. at *6. Plaintiff “simply has no evidence that she suffered harm as a result of anything that [the moving defendant] did.
Perhaps the most important phrase in the entire Sherer-Smith opinion is that plaintiff’s “case was transferred.” Id. at *2. That means that the settlement-driven fix was no longer in to ensure that no MDL defendant would ever obtain dismissal of design defect claims against it. Remand judges actually have to decide cases before them, rather than force settlements. We hope to see more pelvic mesh opinions like Sherer-Smith in the future.
We don’t often get to say this on the Blog – due to client sensitivities – but this win was brought home by a Reed Smith team of Maryanne Woo, Eric Alexander, and others.