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Allen v. C.R. Bard, Inc.

United States District Court, N.D. Iowa, Eastern Division, Waterloo

September 15, 2017

JANE ALLEN, Plaintiff,
v.
C.R. BARD, INC., Defendant.

          REPORT AND RECOMMENDATION

          C. J. Williams, Chief United States Magistrate Judge.

         This cause is before the Court pursuant to defendant's Motion to Exclude or Limit the Opinions and Testimony of Dr. Suzanne Bartlett (Doc. 31) and was referred to the undersigned for a report and recommendation. For the following reasons, I respectfully recommend that the District Court deny defendant's motion.

         I. PROCEDURAL HISTORY

         The above-styled action was initially one of many products liability cases consolidated into a single multidistrict litigation assigned to the Southern District of West Virginia and has since been remanded back to this Court for trial and any remaining pre-trial proceedings. (Docs. 4, 5). The specific motion now before the Court was first brought in the multidistrict litigation prior to remand. Plaintiff filed a resistance to defendant's motion (Doc. 35), and defendant subsequently filed a reply brief (Doc. 36). The Honorable Joseph R. Goodwin, United States District Judge (Southern District of West Virginia) reserved ruling on the motion. As such, the motion is now properly before this Court and ripe for review.

         II. ANALYSIS

         Plaintiff, Jane Allen, was treated by Dr. Suzanne Bartlett for stress incontinence and pelvic floor prolapse. In 2007, Dr. Bartlett implanted plaintiff with anterior and posterior Avaulta Plus Biosynthetic Support Systems. (Doc. 31, at 5). Plaintiff alleges that the Avaulta product was defective and caused plaintiff's vaginal wall to erode. (Doc. 31-2, at 2). Dr. Bartlett was deposed in 2014 and defendant now seeks “to exclude a single line of [Dr. Bartlett's] testimony.” (Doc. 36, at 2).[1] Specifically, the question asked and the answer provided were:

[Question]. Okay. Because it was the polypropylene that was causing the problems?
[Answer (Dr. Bartlett)]. Yes.
* * *
[Answer]. And what I was seeing was that it was only the polypropylene that was eroding into the vagina, and if we could take that part out of it, I thought this could still be-have potential.

(Doc. 31-1, at 20 67: 13-24). Defendant alleges that Dr. Bartlett's answer constitutes improper opinion testimony that the inclusion of polypropylene in the product design rendered the Avaulta product defective and was the ultimate cause of plaintiff's injuries. (Doc. 31, at 5-9).

         Under Daubert, expert testimony is admissible if it “rests on a reliable foundation and is relevant.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). In a prior ruling regarding the admissibility of expert witness testimony from treating physicians in connection with this case, the Southern District of West Virginia held:

(1) Causation opinions, if formed in the course of treatment of the bellwether plaintiffs, and (2) fact testimony related to the learned intermediary issue, specifically, whether the treating physicians would have used the Avaulta products if they were given the warnings that the plaintiffs contend should have been given, should not be excluded. These opinions fall within the realm of proper testimony from treating physicians. I further FIND that (1) expert opinions, if any, on product design, (2) testimony regarding other patients and complications unrelated to the bellwether plaintiffs treated by the physician, and (3) other opinions formed outside of the treating physicians' care and treatment of the bellwether plaintiffs should be excluded. These latter opinions are fraught with reliability and relevancy issues.

In re C.R. Bard, Inc., 948 F.Supp.2d 589, 616-17 (S.D. W.Va. 2013) (emphasis in original). Thus, if defendant is correct that Dr. Bartlett's testimony constitutes an improper opinion on the product's ...


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