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If the pelvic mesh litigation ever ends, the tongue of history will tell a tale of specious plaintiff theories that hoodwinked judges and juries into condemning good products. Plaintiffs extracted millions of dollars and erased product lines by cobbling together irrelevant workplace material handling sheets, counterfactual stories in which the FDA does not exist, and expert theories grounded in junk science. It has hardly been the judiciary’s finest moment.

Some of the remand courts are getting wise to the plaintiffs’ shenanigans. In particular, courts are figuring out that plaintiff experts trashing pelvic mesh often rely on medical causation and product design opinions that are woefully deficient. Merely calling something a “differential diagnosis” does not make it so. Telling patients and doctors to turn back the clock and do surgeries the old way is not really a product design opinion. What those experts say about the mesh turns out to be true about their own opinions: they shrink, they stretch, they degrade, and they hurt patients.

Consider Hosbrook v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 8186 (S.D. Ohio Jan. 12, 2022), a mostly good Rule 702 pelvic mesh decision. Not all the Rule 702 (that is now the preferable nomenclature over Daubert) decisions went the defendant’s way, but enough did to hobble the plaintiff’s case going forward, if it does go forward.

By the time of the Rule 702 rulings in Hosbrook, the only claim left was for design defect, and the plaintiff tried to support that claim with a potpourri of weak plaintiff expert opinions. We should also note that the defendant filed a couple of Rule 702 motions that were mooted because the plaintiff belatedly admitted that the experts in question were not coming to trial. That to us seems like gamesmanship on the part of the plaintiff’s counsel, forcing the defense to waste time and resources filing unnecessary motions. We don’t like it, and courts shouldn’t either.

But let’s get to some of the good rulings cutting back on the plaintiff experts who actually would come to trial.

First, the Hosbrook court ruled that a plaintiff expert clinical pathologist could not hawk his “degradation bark” theory to the jury. The Hosbrook court held that “there has been no testing of the ‘degradation bark’ theory, no peer review, and no evidence of general acceptance within the scientific community.” That last point, which comes from the old Frye test, was proved up in the usual, comical way: the expert bragged that he was the first person to propose the theory, and nobody else has written on it. Checkmate. Moreover, the plaintiff expert admitted that his “degradation bark” could be tested; it just hadn’t been. Again, checkmate. Even though this expert was allowed to testify about some other things via an MDL ruling, his “degradation bark” theory would not be permitted to pollute the record at trial.

Second, the Hosbrook court shut down a plaintiff expert’s opinion that other surgical procedures correcting stress urinary incontinence and pelvic organ prolapse were “alternative designs.” This issue has surfaced in many pelvic mesh cases. We discussed one example here. Most judges seem to get the point that another surgical procedure does not constitute a safer product. The Hosbrook case was decided under Tennessee law, and the court had no problem or hesitation in concluding that biological tissue graft procedures could not be admitted as a safer alternative in a strict liability design defect claim.

That being said, the plaintiff experts did point to some other products and materials that they claimed were safer than polypropylene. The experts could talk about those alternatives. For example, the plaintiff expert could offer a different chemical composition (something called “polyvinylidene fluoride”) as a valid alternative design. But the truth is that this alternative, and others like it, do not find much favor in the literature or actual medical practice, so the exclusion of alternative surgical procedures profoundly undermines the plaintiff’s case.

Third, the Hosbrook court reserved ruling on the admissibility of an article that was co-authored by a plaintiff expert and that sure sounds like it is plaintiff-side litigation-generated medical literature. The defendant argued that the article was unreliable because it employed flawed methodology and unsound analyses. The defendant also pointed out that the expert was unable at his deposition to respond to certain questions about the study. Hmmm. Something smells. But the plaintiff predictably responded that the article had been accepted by a peer-reviewed publication. Thus, according to the plaintiff, rather than suffer exclusion, the article should be discussed by the expert, and the defense can then cross-examine the expert about any methodological, analytical, or olfactory issues associated with the article. The court punted, and held that at trial the defense could voir dire the expert about the article outside the jury’s presence before the court would decide on ultimate admissibility.

Fourth, the Hosbrook court held that a plaintiff medical expert would be permitted to testify about his personal experience with the product, but could not engage in rank punditry about device research and testing, or training of doctors. This expert had no experience whatsoever as a device manufacturer. It sounds as if the plaintiff lawyers harbored the usual ambition of having their expert take the jury on a tour of internal company documents, but the Hosbrook court was not having it. Even the MDL court had recognized that an expert cannot be a mere conduit for internal company documents. (Long ago and far away, when we practiced tobacco litigation, we fought against plaintiff lawyers who treated witnesses, both fact and expert, as “document delivery devices.”)

Finally, the Hosbrook court returned to the issue of what constitutes a safer alternative product. This issue is clearly a real vulnerability for pelvic mesh plaintiffs. The plaintiffs alighted upon a different product and wanted a plaintiff surgeon expert to extol its virtues. But this expert had no experience with the alleged alternative design, and “previously testified that it should never be used in the pelvic floor in any capacity.” Wow. Talk about elasticity. The court ruled that the expert “had not shown that a lighter weight and larger pore size synthetic mesh is a safer alternative design supported by testing, medical or scientific literature or methodology,” so he could not testify about it.

However you count the various Rule 702 issues in Hosbrook, the defense came out on top. So did reason and sound judicial gate-keeping.