The pelvic mesh remand hits just keep coming. We like Shostrom v. Ethicon, Inc., 2022 U.S. Dist. LEXIS 55748 (D. Colorado March 28, 2022), because it hammers some ubiquitous plaintiff mesh experts and because it finds a way to depart from an awful MDL ruling. The fact that the opinion comes at the expense of a plaintiff lawyer who is annoyingly talented makes it even better.
The defendant filed a motion in limine to limit the plaintiffs’ medical causation experts on issues reserved by the MDL court. The remand court began its opinion with a reference to the court’s gatekeeper role in admitting or excluding expert testimony, so we immediately suspected we were in for a good ride. The first expert up for discussion was the plaintiff’s expert urogynecologist/surgeon. The plaintiff proffered this expert’s opinions on both general and specific medical causation. This expert is one many of us have seen before, either in depositions or courtrooms. He is a skillful story-teller, has a good memory of the medical records, and can weave together a “differential diagnosis” at the drop of a hat. He is smart, articulate, and adept at heading off traps. We like the guy personally and can see why he often scores well with juries. But many of his opinions are, to our highly biased eyes, bunk. They distort reality and make a mockery of most states’ design defect and failure to warn laws. The issue is whether a trial court has the moxy to draw lines and limit this clever expert’s testimony.
The Shostrom court had that moxy, drew the right lines, and limited the urogynecologist’s testimony. Let’s go through the rulings.
First, the plaintiff expert was not permitted to opine on non-mesh surgical procedures as alternative designs. We have seen this ruling many times before (see here and here). A Burch procedure, for example, is not an alternative product.
Second, the court curtailed the expert’s criticisms of how the mesh was cut. Mesh can be cut by either a machine in a standard fashion or be cut by a laser. Whichever way the mesh at issue in a case was cut, you can bet that the plaintiffs will say it should have been cut the other way. This very expert has gone on record damning both ways of cutting the mesh. But since when has two-facedness been a problem for plaintiff experts? It was a problem here because Colorado law requires that the plaintiff show that the urged alternative would have prevented the plaintiff’s injury. That’s a bit of a problem for this expert, because he would never-ever want to go on record that any particular mesh-cut would avoid or reduce the risk of injury. Such testimony would come back to bite him in another case. That dilemma for the expert made the decision easy for the Shostrom court: “Because none of her experts will opine that her injuries would have been avoided or that the mesh would have been safer if cut differently, testimony on this point appears irrelevant. Moreover, it would be confusing to a jury.”
Third, because Colorado law requires an alternative product to be “practicable and available,” the plaintiff urogynecology expert was not allowed to testify that “lighter weight” mesh is an alternative since the FDA has never approved/cleared any lighter weight product. The plaintiff correctly pointed out that the mesh MDL court had already denied this same motion by the same defendant aimed at the same plaintiff expert. How, given that unfortunate precedent, did the defendant prevail on this point? When the MDL judge ruled on this issue, he was not deciding any particular state’s law. In “the interests of justice,” the Shostrom court construed the defendant’s motion as seeking reconsideration of the court’s earlier order adopting “the relevant MDL orders.” The Shostrom court then refused to follow this aspect of the MDL rulings on this expert because it conflicted with Colorado law. It was undisputed that no mesh products recommended by the plaintiff expert had been marketed in the United States.
We do not want you to think that all of the Shostrom court’s opinion picked on only one plaintiff expert. The Shostrom court made similar rulings regarding an ob-gyn plaintiff expert, who was proffered on general medical causation. This expert also was precluded from bloviating about alternative surgical procedures or the virtues of lighter mesh. Even worse for the plaintiff, the court held that this expert was unqualified to testify on product design and design controls.
It turns out that the plaintiff in Shostrom wanted to bring an “army of experts” to trial. This might be a response to the dismal results that mesh plaintiffs have recently met with in trials. The Shostrom court continued to perform its gatekeeping role well, ruling that opinions about the defendant’s surgeon training were “irrelevant, speculative and misleading” because the plaintiff offered no expert opinion that her surgeon provided substandard care. (Mesh plaintiffs almost never blame their doctors. They want all fault assigned to the mesh manufacturer.). The Shostrom court also held that expert opinions on the defendant’s state of mind were excluded – as per MDL rulings. This was one of the expert rulings that the MDL court consistently got right. The Shostrom court also ruled that another plaintiff expert could not comment on the defendant’s “failure to conduct certain testing because he is not qualified to opine on what testing a manufacturer should do, and the ‘factual underpinnings’ of a lack of testing would be nothing more than a summary of corporate documents from an expert witness, which the MDL court rejected.” Yay, MDL court.
Finally, the Shostrom court made an additional observation about the plaintiff’s “army of experts.” The court firmly stated that it would foreclose duplicative testimony. Exercising its authority under Fed. R. Evid. 611 to control the introduction of testimony and avoid cumulative material, the Shostrom court held that the plaintiff must choose only one expert on each of the topics.
Given our undisguised rooting for the defense side, we hope and expect at the end of the Shostrom case to quote the ancient knight in Indiana Jones and the Last Crusade and say that the plaintiff lawyers “chose poorly.”