United States District Court, N.D. Iowa, Eastern Division, Waterloo
REPORT AND RECOMMENDATION
Williams, Chief United States Magistrate Judge.
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.
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
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). 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
(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).
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
(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 ...