Donalds v. Ethicon, Case No. 22-1737 (4th Cir. Mar. 10, 2023), was one of those messy pelvic mesh remand cases. Here, Paula Donalds brought a products-liability suit against defendants Ethicon, Inc. and Johnson & Johnson, in the MDL seeking damages for injuries she claims were caused by a pelvic mesh device produced by Ethicon. She named experts about a year later, her case was remanded about two years after that, defendant moved for summary judgment, and the court requested briefing on the admissibility of the plaintiff’s only case-specific expert under Fed. R. Evid. 702.
That expert’s report was bare bones ? much like many reports produced by a number of plaintiffs’ experts in those MDLs when their signatures were being affixed to ten or more reports on a given day. Without addressing alternative causes, the report concluded “the complications [plaintiff] endured following implantation . . . were proximately caused by the erosion of the mesh product.” Id. at *1. In connection with the Rule 702 briefing more than three years later, plaintiff offered an extra affidavit from the expert to try to fix the obvious deficiencies in his report. The District Court did not consider the belated affidavit in excluding the expert’s causation opinions and granting summary judgment.
On appeal, plaintiff offered a series of arguments, some of which she had waived along the way. Up first was whether the expert’s disclosed causation opinion was properly excluded. Citing Joiner and its own strong decision in Sardis, the Fourth Circuit tagged the expert’s opinion as merely ipse dixit. The multiple failings included 1) not identifying a defect that allegedly caused the injuries (as required by Maryland law), 2) not addressing other possible causes, and 3) not identifying the reasons or methodology behind his opinion. So, summary judgment was found to be proper.
As for the belated affidavit, the Court would not buy it, finding that it was not a timely attempt to supplement an incomplete or incorrect disclosure. As one of the cited decisions put it, “Courts distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from gamesmanship, and have therefore repeatedly rejected attempts to avert summary judgment by ‘supplementing’ an expert report with a ‘new and improved’ expert report.” Id. at *5 (quoting Gallagher v. Southern Source Packaging, LLC, 568 F. Supp. 2d 624, 631 (E.D.N.C. 2008)).