Hammock v. Mentor Worldwide LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROWENA MARIE HAMMOCK, )

)

Plaintiff, )

)

v. ) Case No. 19-cv-1041- RJD

)

MENTOR WORLDWIDE, LLC and )

COLOPLAST CORP., )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

This matter comes before the Court on Plaintiff’s Motion to Reconsider (Doc. 126) its

Order granting Defendant Coloplast Corporation’s Motion to Exclude Opinions and Testimony of

Ahmed El-Zawahry, M.D. (Doc. 113). Defendant Coloplast Corp. responded (Doc. 127). As

explained further, Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.

On April 24, 2006, Plaintiff was implanted with a Coloplast Aris Trans-Obturator Sling

System (the “Aris”) at St. Mary’s Hospital in Centralia, Illinois (Doc. 1). The Aris was intended

for women with stress urinary incontinence (Doc. 55-13). Plaintiff filed claims against

Defendants in a multi-district litigation (“MDL”) case in the Southern District of West Virginia,

Case No. 2-12-cv-2387 (Doc. 53). Plaintiff’s case was transferred to this Court after discovery

was complete.

Plaintiff intended to call Dr. Ahmed El-Zawahry at trial to testify as a specific causation

expert (Doc. 92-3). Dr. El-Zawahry removed Plaintiff’s Aris. The Court granted in part

Defendant’s Motion to Exclude Opinions and Testimony of Dr. El-Zawahry, finding that Plaintiff

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had not properly disclosed him as a witness pursuant to Rule 26(a)(2)(B) and finding that his

“disclosed” opinions regarding specific causation were not made within the course of the treatment

he provided her (Doc. 113). Plaintiff now moves the Court to reconsider the exclusion of Dr. El-

Zawahry’s specific causation opinions, contending that the Court made “an assumption based upon

speculation and conjecture.”

On September 5, 2017, Plaintiff served Defendants with a pleading titled “Disclosure of

Specific Causation Expert” for Dr. El-Zawahry:

Dr. El-Zawahry is a treating physician and has not been retained to

provide expert testimony in this case. Therefore, the requirements

of FRCP 26(a)(2)(B) do not apply to this disclosure.

The disclosure requirements for FRCP 26(a)(2)(C) are contained in

the report of Dr. El-Zawahry dated January 30, 2017, attached

hereto.

(Doc. 92-1).

Dr. El-Zawahry’s “report” dated January 30, 2017 provides a narrative of the treatment he

provided to Plaintiff and describes the symptoms that she reported to him. His report includes the

following statements:

She mentioned that she was doing fine until she had the sling placed

in 2002, after which she did initially well, and then her symptoms

started to reappear and cause her discomfort. Unfortunately, I do not

have the history of the past records.

************

Overall, she had complex problems and it is very difficult to point

at one source of her problems. However, since the removal of [the

Aris] she has had improvement of her groin, some of the pelvic pain,

and pain with intercourse. We can cautiously say that the sling may

have to some extent contributed to these symptoms as these were

masked by other problems she had such as interstitial cystitis and

underactive bladder. These other issues could result in similar

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symptoms in patients who did not undergo sling procedures.

To answer your questions:

In my assessment, I believe that the sling has caused her pelvic pain,

the left groin pain, pain with intercourse since these problems have

improved after the sling removal. Also, during examination, her pain

and discomfort around the sling arms are gone.

Ms. Vance denies completely having any pelvic pain or groin pain

prior to the sling surgery and for this reason we can attribute that

this pain is most likely related to the sling.

(Doc. 92-2).

On February 21, 2019, Plaintiff’s counsel then prepared another document titled “Rule 26

Expert Witness Disclosures” that contained the following:

….In addition to the opinions contained in the report attached to the

disclosure served on September 5, 2017, it is expected that, after

being provided with a complete medical history of the Plaintiff, Dr.

El-Zawahry will opine, within a reasonable degree of medical

certainty that the following were probably caused by the failure of

the Defendant’s product: pelvic and groin pain, bladder pain,

interstitial cystitis, urethral stricture, recurrent urinary tract

infections….

The disclosure goes on to list 13 more conditions “probably” caused by the Aris and states that Dr.

El-Zawahry is “expected to opine that the [Aris] failed to perform as expected in light of its nature

and intended function and to a lack of secondary causes for the failure of the product” (Doc. 92-

3).

Disclosed pursuant to Federal Rule of Civil Procedure 26(a)(2)(C), Dr. El-Zawahry can

only give opinions on the specific cause of Plaintiff’s injuries if he formed those opinions as he

treated her. E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013). Upon

reconsideration, the Court sees that it erred when it discounted Dr. El-Zawahry’s statement “in my

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assessment, I believe that the sling has caused her pelvic pain, the left groin pain, pain with

intercourse since these problems have improved after the sling removal. Also, during

examination, her pain and discomfort around the sling arms are gone.” This language indicates

that he formed his opinions regarding Plaintiff’s pelvic, groin, and intercourse-related pain

(hereinafter, collectively “pain”) as he treated her.

In their Motions to Exclude and in their Response to Plaintiff’s Motion to Reconsider,

Defendants raised Daubert objections to this opinion (e.g., that it is not reliable, would not assist

the trier of fact, not based on sound principles). Dr. El-Zawahry is a board-certified urologist who

treated Plaintiff and removed her Aris (See Doc. 49-7). For purposes of ruling in limine, it appears

that Dr. El-Zawahry is qualified to render the opinion that “the sling has caused her pelvic pain,

the left groin pain, pain with intercourse since these problems have improved after the sling

removal” and “during examination, her pain and discomfort around the sling arms are gone.” The

Court acknowledges that there are statements in the letter where Dr. El-Zawahry does not seem

convinced of his opinion (e.g., “we can cautiously say that the sling may have to some extent

contributed to these symptoms”). These statements are why the Court discounted Dr. El-Zawahry’s

specific causation opinions regarding Plaintiff’s pain in the previous Order. However, Dr. El-

Zawahry ultimately concludes that Plaintiff’s pain was related to the Aris based upon his

assessment and examination of her and therefore the Court will not exclude this opinion in limine.

Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (“a medical expert’s ultimate

opinion must be grounded in the scientific process and may not be merely a subjective believe or

unsupported opinion). This issue may be revisited at trial. Perry v. City of Chicago, 733 F.3d

248, 252 (7th Cir. 2013) (citing Luce v. U.S., 469 U.S. 38, 41-42 (1984)).

Having found that Dr. El-Zawahry’s specific causation opinion regarding Plaintiff’s pain

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is not barred in limine, the Court now turns to the remaining opinions disclosed by Plaintiff in the

February 21, 2019 disclosure. Plaintiff’s counsel instructs the Court to refrain from analyzing the

disclosure (a practice he refers to as “engag[ing] in an endless evaluation of circumstantial

evidence”) and just “ASK DR. EL-ZAWAHRY” (emphasis in the original) at trial. This

argument suggests that Plaintiff’s counsel believes that the directives in Rule 26 are meaningless.

Rule 26 does have a purpose: to allow the other side to prepare for trial. See Karum Holdings

LLC v. Lowe’s Companies, Inc., 895 F.3d 944, 952 (7th Cir. 2018) (internal citations omitted).

Of course, Plaintiff’s counsel has informed the Court multiple times that defense counsel

scheduled and then cancelled Dr. El-Zawahry’s deposition three times. If Plaintiff’s counsel

needed Dr. El-Zawahry’s deposition testimony to satisfy the requirements of Rule 26, then

Plaintiff’s counsel should have deposed him. The Court expects litigants to follow Rule 26 and

properly disclose their experts in order to “eliminate surprise, avoid unnecessary depositions and

reduce costs.” Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 743 n. 6 (7th Cir. 1998).

Having noted the deficiencies in Plaintiff’s Rule 26 disclosures, it was not improper for Defendants

to decline deposing Dr. El-Zawahry.

As the Court previously explained in the order granting Defendants’ Motion to Exclude,

the record reflects that Dr. El-Zawahry’s specific causation opinions (other than those related to

Plaintiff’s pain) were not formed when he treated her. He last treated Plaintiff in April 2016 (Doc.

49-6, p. 12). Nine months later, he wrote her attorney a letter where he explains that he did not

have her past medical records and offered “opinions” related only to Plaintiff’s pain. Two years

later, Plaintiff’s attorney disclosed that Dr. El-Zawahry will opine, after being provided with a

completed medical history, that Plaintiff’s Aris “within a reasonable degree of medical

certainty…probably” caused her to develop 16 different conditions (other than her pain) and failed

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to perform as expected.

Plaintiff’s counsel refers to the disclosures and letter as “circumstantial” evidence upon

which the Court should not rely. Regardless, there is nothing else before the Court to review on

this issue. Defendants first moved to exclude Dr. El-Zawahry in May 2019. Their primary

argument was based on Daubert issues: that Dr. El-Zawahry did not base his opinions on sufficient

data or relied upon any sound methodologies or principles. Plaintiff filed a Response, contending

that Dr. El-Zawahry would have given “robust opinions, factual basis, and reasoning to support

the Rule 26 disclosures” at his deposition. This case was then transferred from the MDL court to

the Southern District of Illinois. Defendants filed another Motion to Exclude Dr. El-Zawahry,

this time including case law from the Seventh Circuit and this District that explicitly requires a

treating physician to prepare a report pursuant to Rule 26(a)(2)(B) before he/she can testify to

opinions that were formed outside the course of the plaintiff’s treatment. Plaintiff simply re-filed

her response to Defendants’ original motion to exclude.

Nearly three years have now passed since Defendants first raised the issues surrounding

Plaintiff’s disclosure of Dr. El-Zawahry’s opinions. Plaintiff has never asked the Court for leave

to amend her disclosures, or to reopen discovery and depose Dr. El-Zawahry. She has not

provided to the Court information with which it could find that Dr. El-Zawahry made the opinions

listed in the February 21, 2019 disclosure while he was treating her. She has never given the

Court any information with which it could find that the deficiencies in her disclosures were

“substantially justified or harmless.” Cripe v. Henkel Corp., 858 F.3d 1110, 1112 (7th Cir. 2017).

Instead, she has persisted to convince the Court that she properly disclosed Dr. El-Zawahry.

The undersigned has considered, sua sponte, re-opening discovery to allow Plaintiff to

properly disclose a specific causation expert, and then allow Defendants time to disclose a rebuttal

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expert. The Court recognizes that the MDL Court recommended to immediately set this case for

trial (Doc. 53). Moreover, the Court has no basis to find that good cause exists for re-opening

discovery, except that Plaintiff will certainly be prejudiced by the exclusion of Dr. El-Zawahry.

However, Plaintiff’s insistence that Dr. El-Zawahry was properly disclosed has delayed this matter

and prejudiced Defendants. Moreover, nothing before the Court suggests that Plaintiff can “cure”

her insufficient disclosure of Dr. El-Zawahry. See David v. Caterpillar, Inc., 324 F.3d 851, 858

(7th Cir. 2003).

CONCLUSION

The Court previously ordered that Dr. El-Zawahry can testify at trial regarding the

treatment he provided Plaintiff and the symptoms she reported to him as identified in Dr. El-

Zawahry’s January 30, 2017 letter (Doc. 49-2); that ruling remains undisturbed. Plaintiff’s

Motion to Reconsider (Doc. 126) is GRANTED IN PART and DENIED IN PART. Dr. El-

Zawahry’s following opinions are not excluded in limine: “the [Aris] has caused her pelvic pain,

the left groin pain, pain with intercourse since these problems have improved after the [Aris]

removal” and “during examination, her pain and discomfort around the [Aris] arms are gone.” Dr.

El-Zawahry’s remaining opinions listed in Plaintiff’s February 21, 2019 disclosure are barred

because Plaintiff failed to establish that Dr. El-Zawahry reached them during Plaintiff’s course of

treatment, and therefore failed to follow Federal Rule of Civil Procedure 26(a)(2).

IT IS SO ORDERED.

DATED: March 16, 2022

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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