Parks v. Ethicon, Inc.

Opinion

ORDER (1) DENYING DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONY, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Presently before the Court are Defendants Ethicon, Inc. and Johnson & Johnson's Motions for Summary Judgment ("MSJ," ECF No. 34) and to Exclude Certain Case-Specific [*2]  Opinions of Daniel Elliott, M.D. ("Daubert Mot.," ECF No. 36). The Court held a hearing on October 15, 2020, at which the Parties agreed to submit the motions on the briefing. (See ECF No. 108.) Having carefully considered the Parties' arguments, evidence, and the law, the Court DENIES Defendants' Daubert Motion and GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment as follows.

BACKGROUND

The Parties agree to the following undisputed facts:

Plaintiff Donna Parks, a resident of California, visited Dr. Shawn Menefee in 2010 with complaints of pelvic organ prolapse. (ECF No. 35 ("MSJ Mem.") at 2 (citing ECF No. 1 ¶ 4; ECF No. 34-1 at 6).) On January 8, 2010, Dr. Menefee implanted Gynemesh PS at Kaiser Hospital in San Diego, California. (Id. (citing ECF No. 34-2; ECF No. 34-3 at 77:6-17).)

In January 2010, Dr. Menefee was familiar with the risk of complications from pelvic mesh products generally, including exposure or erosion, infection, acute and/or chronic pain, urinary problems, recurrence or failure, bowel/bladder/blood vessel perforation during insertion, bleeding, wound complications, inflammation, fistula formation, vaginal scarring, organ or nerve damage, neuromuscular [*3]  problems, need for additional surgeries, foreign body response, contraction or shrinkage of tissue, dyspareunia (pain with intercourse), and a decrease in patient quality of life. (Id. at 3 (citing ECF No. 34-4 at 97:9-99:4, 101:12-103:7).) However, Dr. Menefee was not aware of all the risks associated with the transvaginal use of Gynemesh PS at the time of Plaintiff's surgery. (MSJ Opp'n at 2 (citing ECF No. 44-1 at 56:8-59:22, 60:1-21, 61:22-62:22).)

Through the years, Dr. Menefee has read most Instructions for Use ("IFUs") accompanying mesh products because they come as a package insert; nonetheless, it is not his practice to read them before every surgery. (MSJ Mem. at 3 (citing ECF No. 34-4 at 141:13-17).) He also could not recall whether he had read the Gynemesh PS IFUs before Plaintiff's surgery in January 2010, (id. at 4), although he believed that he had. (MSJ Opp'n at 2 (citing ECF No. 44-1 at 141:18-23).)

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