MDL Court Limits Plaintiff's Use Of Company Documents In Expert Testimony

Winston & Strawn LLP


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Last week, in In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, the U.S. District Court for the Southern District of Ohio
United States Consumer Protection
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Last week, in In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, the U.S. District Court for the Southern District of Ohio held that an expert may not opine on the intent or state of mind of a corporation and that a historical recounting of internal company documents is not permissible expert testimony. ---F. Supp. 3d---, 2021 WL 2646797, at *6-7 (S.D. Ohio June 28, 2021). The decision limits the ability of plaintiffs to exploit corporate documents in expert reports and testimony without appropriate expert analysis.

The case is the first bellwether trial in a multidistrict litigation involving allegations that the defendants' prescription hernia mesh products used for hernia repairs caused complications like omental adhesions when implanted in patients. Id. at *1. The plaintiff alleges that the products are defective and harmfully expose internal organs and tissues to polypropylene. Id.

Defendants brought a motion to exclude the opinion and testimony of the plaintiff's polymer science expert, arguing that his opinions were irrelevant and unreliable, and that some of his opinions improperly narrate internal company documents and assess the defendants' knowledge and state of mind. Id. at *2.

While the court found that some of the expert's opinions were relevant and reliable, the court found that most of the expert's opinions in the section of his report summarizing the defendants' internal documents and state of mind were improper. Id. at *6. The court held that it was inappropriate for an expert to opine that the defendants "were aware of certain events or facts or possessed a certain state of mind" because such opinions "have no basis in any relevant body of knowledge or expertise." Id. (internal quotations and citations omitted). Rather, the court held that drawing inferences about the defendants' knowledge based on internal company documents was within the province of the jury without expert assistance. Id.

The court also took issue with the expert's historical recounting of internal company documents. The court noted that "[a] history without any expert analysis or other application of the expert's expertise is simply a factual narrative that should be presented to the jury directly." Id. at *7 (internal quotations and citations omitted). To be admissible, expert opinions must rely on "expert knowledge and experience to contextualize, analyze, and interpret historical facts." Id. Simply quoting internal documents is insufficient. Id. Again, the court emphasized that the jury could draw its own conclusions based on the defendants' statements without expert support. Id. The court also held that it is improper for an expert to assign a motive to the defendants based on a historical recounting and interpretation of company documents. Id.

The court rejected the plaintiff's contention that an expert is permitted to review a company's documents and summarize them because the expert's testimony must ultimately assist the jury. Id. at *8. The expert's opinions offered nothing beyond what the jury could achieve on its own. Id. And the plaintiff failed to explain how the expert actually relied on the internal documents to reach his expert opinions. Id. The court held, therefore, that the opinions must be excluded. Id.

The decision in In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation offers helpful insight on where courts draw the line in admitting expert opinions based on defendants' internal company documents. Companies defending product liability claims should note this development when challenging the admissibility of experts who simply summarize or recharacterize company documents. 

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