Multidistrict litigations are big piles of wrong. Wrong incentives invite the wrong cases, the wrong rulings, and the wrong results. Plaintiff lawyers park weak cases in MDLs, counting on ultimately collecting money for cases into which they invested virtually no work. Courts encourage that dysfunctional conduct by doing everything possible to force settlements, even if that means making bad rulings or no rulings at all.
The federal judiciary probably considers the end of the pelvic mesh MDLs a huge success, because, well, they ended. Sort of. There were, in fact, large-scale settlements. But such ‘success’ came as a result of risible rulings (admitting irrelevant/prejudicial material safety data sheets, excluding evidence of FDA 510(k) clearance, etc.). To be sure, those rulings were mostly affirmed, not reversed, by appellate courts. Why? We cynically attribute those affirmances to sheer gratitude that the MDL was being ‘handled’. What the great Alexander Bickel called the “least dangerous branch” of government can sometimes be plenty dangerous.
And yet some remand courts have struggled to mitigate the mischief wrought by those rulings. To the extent pelvic mesh cases did not settle because of greedy, truculent plaintiffs and their counsel, many not-ready-for-trial-or-prime-time cases landed in the laps of remand courts. Judicial gratitude turned into frustration. Put simply, many remand pelvic mesh cases were a mess. Some remand courts have taken steps to clean up that mess.
Donalds v. Ethicon, Inc., 2021 U.S. Dist. LEXIS 246609 (D. Md. Dec. 28, 2021), was one of those messy pelvic mesh remand cases. It was another pelvic mesh case unprepared for life after remand, and the court cleaned it up in the best possible way: dismissal via summary judgment. We’ll focus on two of the claims – design defect and failure to warn – and only briefly mention the rest.
The plaintiff proffered one expert who purported to connect the mesh’s alleged design defect with the plaintiffs alleged injury. That expert submitted a two page expert report bereft of any explanation supporting the specific causation opinion. Here is the report’s conclusion:
It is my opinion to a reasonable degree of medical probability that the complications Ms. Donalds endured following implantation of the TVT ABBREVO mesh product, as described above, were proximately caused by the erosion of the mesh product. These complications include pain (during intercourse and otherwise), vaginal bleeding, bladder spasms, headaches, and urinary leakage. The medical procedures Ms. Donalds underwent to treat the mesh erosion and continued stress incontinence, and the related costs, were reasonable and necessary.
The problem is that the plaintiff’s expert did “not explain how he reached that conclusion. Instead, he provides only a brief recitation of the documents he reviewed and offers a short summary of Donalds’ surgical history…. He does not explain how the alleged erosion caused her complications or why he reached that outcome.“ (Emphasis in original.)
If you have ever had the displeasure of reading a plaintiff pelvic mesh specific medical causation expert report, you know that 90% of such a report will be a mind-numbing summary of the plaintiff’s medical records. The Donalds case makes clear that such summary is not enough. Tacking on an ipse dixit conclusion at the end is not enough. Post hoc arguments by plaintiff counsel are not enough.
The main post hoc argument by the plaintiff was that the defendant had the opportunity to depose the expert “to further elucidate the completeness of his opinions and the basis for them.” But the court held that a defendant is not obligated to depose an opposing expert and give the other side a chance to overcome an inadequate report. The plaintiff “cannot point the finger at [the defendant] for failure to draw out the grounds for her expert’s opinion in a deposition.” The burden is on the party proffering the expert. This is why when we depose an expert we never ask them what their opinions are or what they will say at trial. We simply take the expert’s report as a given and inquire as to its bases and things considered or not considered.
The plaintiff in Donalds went the post hoc route whole hog by appending a supplemental expert affidavit “offering a previously undisclosed explanation of his methodology.” Too late. In fact, too late by more than three years. The court refused to consider the belated affidavit. The plaintiff offered no justification for the last minute affidavit. Because the only specific causation design defect expert’s opinions were unreliable and inadmissible, the Donalds court dismissed the design defect claims.
The failure to warn claims fared no better. Here, as is often the case in pelvic mesh cases, the existence of the learned intermediary rule and the non-existence of warning causation doomed the failure to warn claims. Even a bad (Maryland) statutory heeding presumption could not save the plaintiff’s warning claims where the implanter testified that she did not place great reliance on the device’s Instructions for Use, that she stood by her decision to implant the particular mesh device in question, and that she would not change anything even after viewing a current risk chart.
Sometimes during depositions of plaintiffs the parties play a game of chicken. No one wants to ask the question that clobbers oneself. But the plaintiff’s failure in Donalds to question the implanter about anything that might have established warning causation, read against the rest of the evidence in the case, overcame the heeding presumption and sank warning causation.
Because there were other claims, we will talk about them, but we needn’t say much. The Donalds court wasted little ink in dismissing the warranty claims. The utter lack of evidence of specific medical causation evidence undermined those claims. Beyond that, the plaintiff’s opposition brief provided “the vague promise that she will offer evidence at trial to support her claims. Such assurances are insufficient to survive a motion for summary judgment.” Indeed.
Finally, we get to the flotsam and jetsam fraud claims. Both the common law and consumer fraud statutory claims failed for want of proximate causation.
The Donalds case ended for reasons that all seem perfectly obvious. It is obvious that it should have ended a lot sooner. It is also sadly obvious why it did not.