Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 1 of 25 PageID #: 13901 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON IN RE: ETHICON, INC. PELVIC REPAIR Master File No. 2:12-MD-02327 SYSTEM PRODUCTS LIABILITY MDL No. 2327 LITIGATION JOSEPH R. GOODWIN THIS DOCUMENT RELATES TO: U.S. DISTRICT JUDGE Jo Beth Huskey, et al. v. Johnson & Johnson, et al. Case No.: 2:12-cv-05201 [PROPOSED] JOINT PRETRIAL ORDER In accordance with Local Rule of Civil Procedure 16.7(b) and Rules 16 and 26 of the Federal Rules of Civil Procedure, and pursuant to Pretrial Order No. 127, Plaintiff Jo Huskey (“Plaintiff”) and Defendants Ethicon, Inc. and Johnson & Johnson (“Ethicon”), by their undersigned counsel, hereby respectfully submit the following [Proposed] Joint Pretrial Order for the Court’s consideration: I. PRETRIAL DISCLOSURES REQUIRED BY FEDERAL RULE OF CIVIL PROCEDURE 26(A)(3) AND OBJECTIONS THERETO A. Witnesses each party expects to present and may call if the need arises 1. Names of witnesses Plaintiff expects to present at trial: The final list of witnesses that Plaintiffs will present at trial is dependent on several factors, including but not limited to any further pre-trial rulings by the court; Plaintiffs’ ability to present certain witnesses whom they do not control for live testimony; and the Court’s time limitations: i. Jo Huskey ii. Allan Huskey iii. Dr. Bruce Rosenzweig iv. Dr. Jerry Blaivas Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 2 of 25 PageID #: 13902 v. Dr. Erin Carey vi. Scott Guelcher, Ph.D. vii. David Epperly 2. Names of witnesses Plaintiff may call if the need arises at trial: i. Gretchen Dean PT ii. Nancy Davidson iii. Dr. John Steege iv. Russell Dunn, Ph.D. v. Abhay Pandit, Ph.D. vi. Any witness called by the Defendant 3. Ethicon’s objections, if any, to Plaintiff’s witness list: Ethicon objects to any witness listed by Plaintiff testifying to that which is beyond what is set forth in their report and insofar as said witness’s testimony has been excluded by the Court’s rulings on Ethicon’s motions to exclude or in limine motions. In addition, Ethicon objects to Plaintiff calling any fact witness or treating physician not previously identified or made available for deposition. 4. Names of witnesses Ethicon expects to present at trial: The final list of witnesses that Ethicon will present at trial is dependent on several factors, including (a) the witnesses that Plaintiff presents during her case-in-chief, (b) the Court’s rulings on motions, and (c) the trial schedule and availability of Ethicon’s witnesses. Ethicon also reserves the right to call any witness listed by Plaintiff. Subject to those considerations, Ethicon presently expects to call the following witnesses at trial: i. Daniel Sexton, M.D. ii. Christina Pramudji, M.D. iii. Plaintiff’s treating physicians: a. Gretchen Byrkit, M.D. b. Colleen Fitzgerald, M.D. c. James Harms, M.D. d. Elizabeth Mueller, M.D. e. Dele Ogunleye, M.D. f. Derin Rominger, M.D. g. Kenneth Schoenig, M.D. h. Bryan Yocks, M.D. iv. Plaintiff’s coworkers and friends: a. Bryan Jasker b. Ruth Teel c. Terry Ward v. Ethicon employees: a. Piet Hinoul, M.D. b. Axel Arnaud, M.D. Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 3 of 25 PageID #: 13903 5. Names of witnesses Ethicon may call if the need arises at trial: i. Laura Angelini ii. Thomas Barbolt, Ph.D., DABT iii. Thomas A. Barocci, Ph.D. iv. Boris Batke v. Catherine Beath vi. Dan Burkley vii. Peter Cecchini viii. Meng Chen, M.D. ix. Judi Gauld x. James Hart, M.D. xi. Matthew Henderson xii. Kimberly Hunsicker xiii. Joerg Holste xiv. Michelle Irvin xv. Richard Isenberg, M.D. xvi. Harry Johnson, M.D. xvii. Gregory Jones xviii. Scott Jones xix. Gene Kammerer xx. Brian Kanerviko xxi. Aaron Kirkemo, M.D xxii. Dan Lamont xxiii. Reynaldo Librojo xxiv. Susan Lin xxv. Bryan Lisa xxvi. Brian Luscombe xxvii. Brett Marshall xxviii. Codi Marshall xxix. Clint Marshall xxx. Jim Mittenthal xxxi. Charles Nager, M.D. xxxii. Sean O’Bryan xxxiii. Charlotte Owens, M.D. xxxiv. Jennifer Paine xxxv. Paul Parisi xxxvi. David Robinson, M.D. xxxvii. Mark Schneider xxxviii. Daniel Smith xxxix. Shelby Thames, Ph.D. xl. Timothy Ulatowski, M.S xli. David Weber, M.D., M.P.H. xlii. Martin Weisberg, M.D. xliii. Mark Yale xliv. Wenxin Zheng, M.D. Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 4 of 25 PageID #: 13904 xlv. Any other treating physician or health care provider identified in the medical records for plaintiff Jo Huskey. 6. Plaintiff’s objections, if any, to Ethicon’s witness list: Pursuant to Pretrial Order #127, Plaintiffs will serve their objections to Ethicon’s witness list by August 14, 2014. Plaintiffs object to any witness listed by Ethicon testifying to that which is beyond what is set forth in their report and insofar as said witness’s testimony has been excluded by the Court’s rulings on Ethicon’s motions to exclude or in limine motions. In addition, Plaintiffs object to Ethicon calling any fact witness or treating physician not previously identified or made available for deposition. Finally, Plaintiffs object to testimony from physicians who treated Mrs. Huskey for conditions not relevant to her TVT-O and resulting pelvic pain, or conditions that Ethicon’s experts have been precluded from testifying about at trial. B. Designation of witnesses whose testimony is expected to be presented by means of deposition (whether videotaped or otherwise) 1. Plaintiff As with live testimony, the Plaintiffs’ final list for presentation by deposition will depend on several factors, including but not limited to any further pre-trial rulings by the court, including clarifications of rulings already made; Plaintiffs’ ability to present certain witnesses whom they do not control for live testimony; and the Court’s time limitations: i. Dr. Gretchen Byrkit ii. Dr. Sohail Siddique iii. Gretchen Dean PT iv. Nancy Davidson v. Dr. Derin Rominger vi. Michelle Irvin vii. Bryan Jasker viii. LauraAngelini ix. Thomas Barbolt, Ph.D., DABT x. Dr. Meng Chen xi. Dr. James Hart xii. Brigette Helhammer xiii. Dr. Piet Hinoul xiv. Joerg Holste, DVM, Ph. D. xv. Dr. Richard Isenberg xvi. Dr. Aaron Kirkemo xvii. Dr. Bernd Klosterhalfen xviii. Dr. David Robinson xix. Daniel Smith xx. Dr. Martin Weisberg 2. Ethicon Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 5 of 25 PageID #: 13905 The final list of witnesses that Ethicon will present at trial via deposition is dependent on several factors, including (a) the witnesses that Plaintiff present during her case-in-chief, whether live or by deposition, (b) the Court’s rulings on motions, (c) the Court’s rulings on deposition designations, and (d) the trial schedule and availability of Ethicon’s witnesses. Ethicon reserves the right to designate deposition testimony for any witness presented at trial by the Plaintiff or whose deposition is played by the Plaintiff. Ethicon also reserves the right to call via deposition any witness listed by Plaintiff. Subject to those considerations, Ethicon may call the following witnesses at trial via deposition: i. Peter Cecchini ii. Jim Hart, M.D. iii. Kim Hunsicker iv. Richard Isenberg, M.D. v. Gene Kammerer vi. Aaron Kirkemo, M.D. vii. Dan Lamont viii. James Mittenthal ix. Charles Nager, M.D. x. Sean O’Bryan xi. Charlotte Owens xii. Gretchen Byrkit, M.D. xiii. Colleen Fitzgerald M.D. xiv. James Harms, M.D. xv. Bryan Jasker xvi. Elizabeth Mueller, M.D. xvii. Dele Ogunleye, M.D. xviii. Derin Rominger, M.D. xix. Kenneth Schoenig, M.D. xlvi. Ruth Teel xlvii. Terry Ward xlviii. Bryan Yocks, M.D. C. Exhibits each party expects to offer, may offer if the need arises, and objections thereto 1. Plaintiff expects to offer or utilize the exhibits and/or documents identified in the accompanying Attachment A. 2. Ethicon’s objections to Plaintiff’s exhibit list will be provided on August 18, 2014, as provided in PTO #122. 3. Ethicon expects to offer or utilize the exhibits and/or documents identified in the accompanying Attachment B. This list does not include medical literature or similar documents and materials that Ethicon may use with the appropriate witnesses such as learned treatises. Case 2:12-cv-05201 Document 320 Filed 08/04/14 Page 6 of 25 PageID #: 13906 4. Ethicon may offer if the need arises the exhibits and/or documents identified in the accompanying Attachment C. This list includes medical literature and similar documents and materials that Ethicon may use with the appropriate witnesses such as learned treatises. 5. Plaintiffs’ objections to Ethicon’s exhibit list will be provided on August 18, 2014, as provided in PTO #122. II. CONTESTED ISSUES OF LAW REQUIRING A RULING BEFORE TRIAL A. By Plaintiff 1. Any motions in limine or other evidentiary pretrial motions not yet filed. 2. Plaintiffs’ Motion to Permit Live Trial Testimony Via Contemporaneous Transmission B. By Ethicon 1. Defendants’ Omnibus Motions in Limine (Huskey Doc. 282) 2. Defendants’ Motion to Exclude Evidence of Spoliation (Huskey Doc. 274) 3. Defendants’ Motion to Limit Testimony of Erin Teeter Carey (Huskey Doc. 275) 4. Defendants’ Motion to Exclude Testimony by Scott Guelcher, Ph.D. in Reliance on Documents Identified in his Supplemental Reliance List Served August 1, 2014 and to Preclude Testimony other than Those Opinions Contained in Dr. Guelcher’s Expert Report Served February 21, 2014 (Huskey Doc. 314) 5. Defendants’ Motion to Exclude Testimony by Bruce Rosenzweig, M.D., on Matters Contained in his Fourth Supplemental Expert Report Served July 31, 2014 and Accompanying Reliance List (Huskey Doc.