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Eleventh Circuit Court of Appeals rules that trial court did not abuse discretion in allowing testimony of plaintiff’s specific causation expert in medical device product liability case about effect of device that was allegedly undisclosed in Rule 26 expert report

On October 8, 2019, in Taylor v. Mentor Worldwide LLC, the Eleventh Circuit Court of Appeals affirmed a district court judgment for the plaintiff following a jury trial in a product liability case arising out of the multidistrict litigation (“MDL”) proceeding, Mentor Corp. Transobturator Sling Products Liability Litigation, No. 4:08-MD2004 (CDL). The plaintiff and more than 800 other plaintiffs in the MDL proceeding alleged that the defendant manufactured a defective polypropylene mesh sling called “ObTape” which was used by implanting surgeons to treat stress urinary incontinence. The plaintiff’s case was chosen for trial as a bellwether case. She contended at trial her ObTape implant caused her to suffer from a thinning of her urethral wall and from chronic bladder inflammation (also called cystitis). At trial, she endeavored to prove that her injuries resulted from two design defects in the ObTape, namely, a small pore size, which allegedly did not allow adequate tissue ingrowth, and an alleged propensity to degrade and shed polypropylene particles in the body. One of the plaintiff’s experts at trial was Dr. William Porter, a urogynecologist, who had provided a Rule 26 expert report indicating that the plaintiff suffered pain and inflammation that was primarily attributable to ObTape’s small pore size and to a “tightening/contraction” process that resulted from ObTape’s faulty design. However, in his pre-trial deposition, he indicated that he could not say to a reasonable degree of medical probability that the ObTape caused her chronic inflammation and expressed skepticism about the theory of another of plaintiff’s experts that the ObTape had a tendency to degrade and spur an immune response from the body that was destructive to surrounding tissue. At trial, Dr. Porter indicated that his position had “evolved” from the original Rule 26 report and that he believed that that ObTape had in fact caused an erosion of the urethral tissue, or “urethral thinning.” At the conclusion of his testimony, defense counsel moved to strike the testimony as reflecting opinions not disclosed in the Rule 26 report. The district court denied the motion but allowed the defense additional time to prepare for the cross-examination. After the jury returned a verdict of $400,000 in compensatory and $4 million in punitive damages. The punitive damages award was reduced by the district court to $2 million on the finding that the evidence presented at trial was insufficient for the jury to conclude that the defendant acted with specific intent to harm. See Fla. Stat. § 768.73(1)(b).

On appeal, the defendant directed the Eleventh Circuit panel’s attention to Fed. R. Civ. P. 26(e), which imposes a duty to supplement an expert report that is “incomplete or incorrect.” Fed. R. Civ. P. 26(e). The Eleventh Circuit agreed that Dr. Porter’s Rule 26 report should have been supplemented but noted that Fed. R. Civ. P. 37 gives a trial court discretion to decide how best to respond to a litigant’s failure to make a required disclosure under Rule 26. The Eleventh Circuit panel concluded that the district court’s decision to allow the defendant additional time to prepare for Dr. Porter’s cross-examination, rather than striking his testimony entirely, was not an abuse of that discretion. The Eleventh Circuit also concluded that there was no basis to disturb the jury finding that punitive damages were warranted under Florida law, noting the evidence that the defendant (1) did not conduct sufficient product testing, including tests as to degradation despite it being well known that heat and pressure cause polypropylene to degrade, (2) knew of the relatively high rate of complications associated with ObTape but nonetheless concealed or materially understated those risks, and (3) ignored warnings from both its employees and physicians outside of the company.

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