Corley-Davis v. C. R. Bard, Inc.
2:16-cv-10811
S.D.W. VaFeb 12, 2018Background
- Plaintiff Celia Corley-Davis sued C.R. Bard, Inc. in MDL No. 2187 (transvaginal mesh litigation); this case was selected as a Wave 5 case for pretrial management.
- Bard filed a Daubert motion to exclude or limit opinions and testimony of plaintiff’s expert, Dr. Bruce Rosenzweig, M.D. (ECF No. 24).
- Bard challenged Dr. Rosenzweig’s specific-causation opinions on grounds that he did not personally examine the plaintiff, the explanted mesh, or pathology materials and that he failed adequately to account for alternative causes.
- Bard also challenged opinions about mesh degradation, contraction, and deformation, and challenged testimony about a safer alternative design (general causation).
- The court considered Rule 702 and Daubert/Kumho principles and Fourth Circuit guidance on differential diagnosis (Westberry) when assessing admissibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Rosenzweig’s specific-causation opinions | Rosenzweig relied on medical records and a differential diagnosis; methodology explained in report and deposition | Opinions unreliable because he did not personally examine plaintiff, explanted mesh, or pathology | Denied — expert may rely on records; challenges go to weight, not admissibility |
| Opinions re: mesh degradation, contraction, deformation | Rosenzweig inferred degradation from records and explained reasoning in deposition | Unreliable because no personal examination of removed mesh or pathology | Denied — inferences from records admissible; opposing party may contest via cross-examination |
| Testimony re: safer alternative design (general causation) | General causation issues addressed by prior MDL order; Rosenzweig may offer such opinions subject to MDL rulings | Bard sought exclusion of safer-alternative testimony | Denied — MDL’s earlier general-causation rulings govern; remaining issues reserved for trial |
| Whether expert failed to rule out alternative causes sufficiently | Rosenzweig performed differential diagnosis consistent with methodology | Bard argued inadequate accounting for other potential causes given comorbidities | Denied — differential diagnosis need not eliminate every alternative; lack of wholesale exclusion unless no explanation given |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (gatekeeping factors and reliability/principles-over-conclusions rule)
- Kumho Tire Co. v. Carmichael, 525 U.S. 137 (Daubert applied to all expert technical/scientific testimony)
- Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999) (reliable differential diagnosis can support specific-causation opinion)
- Cooper v. Smith & Nephew, Inc., 259 F.3d 194 (4th Cir. 2001) (Daubert factors are flexible; trial court has broad discretion)