Carter v. Johnson & Johnson
2:20-cv-01232-KJD-VCF
| D. Nev. | Sep 30, 2022Background
- Plaintiffs Tamara and David Carter sue Ethicon alleging Prolift and TVT implants (July 23, 2010) caused injury; claims include strict liability (failure to warn, design defect), loss of consortium, and punitive-type damages.
- Plaintiffs proffered Dr. Brian Raybon, a pelvic surgeon/urogynecologist, to opine on device design, materials (including references to PVDF), Ethicon’s physician training, warnings, and feasible safer alternatives.
- Ethicon moved to limit/exclude portions of Dr. Raybon’s testimony under Fed. R. Evid. 702 and Daubert, arguing opinions exceed his expertise, lack reliable support, or are improper (state of mind, narration of internal documents, speculative alternatives).
- The court applied Rule 702/Daubert/Kumho gatekeeping: allow expert testimony based on reliable methods and helpfulness to the jury; exclude unreliable or irrelevant expert assertions and speculative conclusions.
- Ruling (Sept. 30, 2022): Motion granted in part. Court excluded (a) expert testimony that Ethicon failed to train surgeons as a basis to rebut claims not pled or to show surgeon fault, (b) testimony that specific alternative materials (e.g., PVDF) existed and were feasible at the time, and (c) expert testimony about Ethicon’s state of mind or narration of internal corporate documents. Court allowed Dr. Raybon to testify generally about material properties and safer mesh concepts based on his experience and cited studies, and he may testify as a lay witness about personal knowledge of training events.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Dr. Raybon testify that Ethicon failed to train surgeons (expert opinion)? | Raybon may rebut common defense that surgeons lacked skill; training failures caused pain. | Surgeon met standard of care; training-opinion is irrelevant and prejudicial under Rule 403. | Excluded as expert testimony; may testify as lay witness about personal knowledge but not as expert to prove training failures or to rebut non-pled surgeon-fault claims. |
| May Dr. Raybon identify specific alternative materials (e.g., PVDF) Ethicon could have used? | Raybon identifies PVDF and other materials as safer alternatives. | Opinion lacks sufficient facts/data; no published literature proving PVDF safer; basis is internal documents only. | Precluded from testifying that specific materials existed or were feasible at the time; allowed to give general opinions about material properties and what would make mesh safer based on his experience and studies. |
| May Dr. Raybon testify about Ethicon’s internal documents and corporate state of mind? | Plaintiffs say Raybon will state basic facts from documents, not state of mind. | Raybon would offer narrative and speculate about Ethicon’s knowledge/intent. | Excluded from offering expert testimony about Ethicon’s state of mind or narrating internal corporate documents; Plaintiffs must use an appropriate witness to introduce/explain documents. |
| Do Dr. Raybon’s opinions satisfy Rule 702/Daubert (reliability/helpfulness)? | Raybon’s clinical experience and cited studies provide reliable basis to help the jury. | Many opinions are speculative or unsupported and thus unreliable. | Court applied Daubert/Kumho: admitted opinions grounded in Raybon’s experience and supported studies; excluded speculative or unsupported expert conclusions. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial judge must ensure expert testimony is both relevant and reliable; focus on methodology).
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping extends to all expert testimony, including non-scientific).
- Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001) (Rule 702 applied liberally; experts allowed wide latitude if opinions have a reliable basis in their discipline).