Judge Joseph Goodwin of the U.S. District Court for Southern West Virginia denied both motions to exclude as moot, but declined to elaborate on his reasons, according to court documents.
Boston Scientific, Johnson & Johnson‘s (NYSE:JNJ) Ethicon subsidiary, C.R. Bard (NYSE:BCR), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Coloplast (CPH:COLO B) are facing thousands of product liability and personal injury lawsuits over their respective pelvic mesh offerings; hundreds of those cases have been consolidated into multi-district litigation under Goodwin.
Last week Boston Scientific asked Goodwin to limit the testimony of Dr. Mark Slack, a urogynecologist the plaintiffs wanted to testify on pelvic floor anatomy and pelvic floor dysfunction, research and testing for marketing and launch, directions for use and physician training. The company argued that Slack’s expertise is limited to the anatomy and dysfunction testimony, according to court documents.
"As a practicing urogynecologist, Dr. Slack is qualified to opine on pelvic floor anatomy and dysfunction. Dr. Slack is not qualified, however, to render opinions on the adequacy of Boston Scientific’s product testing and development, labeling or physician training. Nor does he offer any reliable basis for these opinions. For this reason, all such opinions should be excluded," according to the documents. "Further, Dr. Slack’s report largely consists of improper expert testimony including 1)narrative testimony that fails to explain the basis for his opinions; 2) conclusory statements regarding Boston Scientific’s alleged state of mind, intent, motives; and 3) improper legal conclusions. All such improper testimony should likewise be excluded."
In the case of Pence, whose testimony Goodwin blocked in the Ethicon MDL, according to the documents, Boston Scientific claimed her to be completely unqualified to offer testimony in the suit.
"Plaintiffs offer Dr. Peggy Pence as a regulatory expert who offers unfounded and unhelpful opinions on the inadequacy of Boston Scientific’s testing, product labeling and post-market vigilance. Recently, this court excluded Dr. Pence’s opinions in their entirety because she ‘failed to exercise sound methodology in arriving at [her] opinion[s]’ and those opinions ‘were not helpful to the jury,’" according to the documents [emphasis theirs]. "Dr. Pence is also unqualified to offer the opinions she attempts to offer in this case. She has never treated a patient and is not qualified by education, training, experience, or specialized knowledge on pelvic mesh or the treatment of pelvic organ prolapse. Despite her lack of qualifications, Dr. Pence offers many opinions which rest on medical judgments about the safety and efficacy of polypropylene mesh which she is not qualified to make."