Judge In Surgical Mesh Products MDL Warns Parties Of Cumulative Expert Testimony

As part of seven MDLs involving surgical mesh products manufactured to treat female stress urinary incontinence, the presiding judge sorted through a number of Daubert expert challenges last week.  The cases are assigned to U.S. District Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia.  In one of the cases involving a medical device that included a mechanism used to place a mesh tape, or sling, under the urethra to provide support to the urethra, the court considered expert challenges to seven of the plaintiffs’ experts and five of the defendant manufacturers’ experts.  Although most of the experts’ testimony was allowed to proceed past the Daubert huddle, at least with respect to part of their opinions, the court warned the parties about his concerns for cumulative testimony, indicating that the plaintiffs offered at least five experts to opine on degradation, three on the insufficiency of the defendants’ warnings, and three on safer alternative designs, and that the defendants offered at least three on degradation.  The court expressly stated that “[t]he parties will not be permitted to call all of these experts at trial, and they should plan accordingly.”  If you would like a copy of the full opinion, please let us know.  This ruling continues the trend of presiding judges in large-scale MDLs limiting the number of experts that parties can call on any one topic, even where there is considerable ground to cover on the topic.  In the Gulf Oil Spill Litigation, for example, U.S. District Court Judge Carl Barbier issued similar warnings for the parties to avoid cumulative expert testimony.