Michelle Arevalo v. Coloplast Corp ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11768
____________________
MICHELLE AREVALO,
Plaintiff-Appellant,
versus
MENTOR WORLDWIDE LLC, et al.,
Defendant,
COLOPLAST CORP,
Defendant-Appellee.
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2 Opinion of the Court 21-11768
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cv-03577-TKW-MJF
____________________
Before LUCK, BRASHER, and ED CARNES, Circuit Judges.
PER CURIAM:
In 2010 Michelle Arevalo was surgically implanted with two
of Coloplast Corp.’s pelvic mesh products: the Aris Transobturator
Sling System and the Exair Prolapse Repair System. She suffered
pain and complications after the surgeries and sued Coloplast un-
der theories of strict liability and negligence.
The district court granted Coloplast’s Daubert motion to ex-
clude as unreliable the specific causation opinion of Dr. Bruce
Rosenzweig, Arevalo’s retained specific causation expert. It later
struck her belated disclosure of Dr. John Miklos as a non-retained
specific causation expert. The court then granted Coloplast sum-
mary judgment because Arevalo did not have admissible expert tes-
timony on specific causation. This is Arevalo’s appeal.
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I. BACKGROUND
Arevalo’s pelvic area issues began in childhood when she
started having bladder and urinary tract infections (UTIs). 1 Later
she developed pelvic pain, heavy and painful periods, and pain dur-
ing intercourse. Her three pregnancies each resulted in vaginal de-
liveries, some with complications. During her first delivery in
1994, she suffered a torn sphincter and had an episiotomy. Her
second and third deliveries (1997 and 2001) were both precipi-
tous (unusually fast). In 1995 she had a loop electrosurgical exci-
sion procedure (LEEP) to remove abnormal tissue from her cervix,
and in 2002 she had her tubes tied.
In 2010 Arevalo sought treatment from gynecologist Dr.
Glenn Bankert for her heavy and painful periods, pain during inter-
course, and occasional urine leakage. Dr. Bankert diagnosed her
with menorrhagia (heavy or prolonged periods), dysmenorrhea
(painful periods), pelvic pain, and stress urinary incontinence. He
also gave her a pelvic exam and found that she had an enlarged
uterus, a second-degree uterine prolapse, and a first-degree cysto-
cele. 2 In September 2010 he performed a total vaginal hysterec-
tomy to remove Arevalo’s uterus and cervix. At the same time, he
1 At this stage “we are required to view the evidence and all factual inferences
therefrom in the light most favorable to [Arevalo], and resolve all reasonable
doubts about the facts in [her] favor.” Feliciano v. City of Miami Beach, 707
F.3d 1244, 1247 (11th Cir. 2013) (quotation marks omitted).
2 A uterine prolapse occurs when the uterus drops down into the vaginal canal.
A cystocele occurs when the bladder drops down into the vaginal canal.
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4 Opinion of the Court 21-11768
implanted her with Coloplast’s Aris mesh to treat her stress urinary
incontinence.
Less than two months later Dr. Bankert diagnosed Arevalo
with significant pelvic organ prolapse. Her first-degree cystocele
had progressed to second-degree, meaning that her bladder had
fallen about halfway down her vaginal canal. She also had a sec-
ond- to third-degree rectocele. 3 That December Dr. Bankert per-
formed a second pelvic reconstructive surgery, this time to repair
her prolapsing organs. To strengthen her front and back vaginal
walls, he implanted them with Coloplast’s Exair mesh. He thought
both surgeries were successful.
Three and a half years later, Arevalo saw gynecologist Dr.
Marjorie Kahn for help with persisting pelvic area issues. Arevalo
complained of incomplete bladder emptying, vaginal bulging, uri-
nary frequency, occasional urine leakage, UTIs, uncomfortable uri-
nation, fecal incontinence, and pain during intercourse. During Dr.
Kahn’s pelvic exam of Arevalo, she could feel the Exair mesh in
Arevalo’s front vaginal wall. When Dr. Kahn touched the mesh,
Arevalo felt tenderness. Dr. Kahn ultimately diagnosed Arevalo
with a litany of conditions, including organ prolapse, scar pain, and
mesh implant complications. For treatment she recommended
physical therapy and trigger point injections in the tender areas to
break up any scar tissue. Arevalo reported some improvement af-
ter the injections but still felt pain during intercourse. Believing it
3 A rectocele occurs when the rectum protrudes through the back vaginal wall.
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21-11768 Opinion of the Court 5
would help relieve the pain and tenderness, Dr. Kahn proposed re-
moving some of the mesh.
In February 2014 Dr. Kahn performed a graft removal sur-
gery during which she removed most of the Exair mesh from Are-
valo’s front vaginal wall. 4 She also repaired and strengthened Are-
valo’s front vaginal wall and repaired her sphincter. Dr. Kahn
noted that Arevalo’s vaginal tissue was more pliable after surgery,
which she hoped would lessen the pain. But Arevalo continues to
have pelvic pain, pain during intercourse, and stress urinary incon-
tinence.
II. PROCEDURAL HISTORY
In February 2013 Arevalo filed a short form complaint
against Coloplast and other entities in a multidistrict litigation pro-
ceeding in the Southern District of West Virginia. In re: Coloplast
Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-2387
(S.D. W. Va. 2012). Her short form complaint adopted sixteen
counts from the MDL master complaint, but she ultimately pur-
sued only the following claims: negligent design and failure to
warn, strict liability design defect, strict liability failure to warn, and
gross negligence. She also sought punitive damages.
In September 2019 Arevalo’s case was transferred to the
Northern District of Florida, and the transfer order stated that the
4 Dr.Kahn testified that she never felt or located the Exair mesh in Arevalo’s
back vaginal wall.
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case was ready to be set for trial. At the time of transfer, Coloplast
had two outstanding motions. One was a motion for partial sum-
mary judgment on Arevalo’s uncontested claims. 5 The other was
a Daubert motion to exclude or limit opinions offered by Dr. Bruce
Rosenzweig, one of Arevalo’s general causation experts and her
only retained specific causation expert. The parties had also filed
other Daubert motions in the MDL action that had been denied
without prejudice, giving them the option to refile those motions
in the transfer court. Upon transfer, the parties told the district
court that they intended to renew these motions, and Coloplast
asked for the chance to re-brief them under our circuit’s law. Are-
valo opposed any re-briefing.
The district court held a case management conference, con-
cluded that the case was not ready for trial, and allowed the parties
to re-brief their Daubert motions. Arevalo re-filed four Daubert
motions and Coloplast re-filed five. One of Coloplast’s re-briefed
motions sought to exclude or limit Dr. Rosenzweig’s opinions.
Coloplast argued that Dr. Rosenzweig’s specific causation opinion
was unreliable because his differential diagnosis methodology —
5 Coloplast moved for partial summary judgment on Arevalo’s claims for neg-
ligent manufacturing, strict liability manufacturing defect, strict liability defec-
tive product, breach of express warranty, breach of implied warranty, con-
structive fraud, “discovery rule, tolling, and fraudulent concealment,” negli-
gent infliction of emotional distress, violation of consumer protection laws,
and unjust enrichment. Arevalo conceded that Coloplast was entitled to sum-
mary judgment on these claims, and the district court granted Coloplast’s mo-
tion.
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21-11768 Opinion of the Court 7
the scientific process of identifying and ruling out other possible
causes of an injury — was deficient. The district court granted all
nine Daubert motions in part. Relevant to this appeal, it excluded
as unreliable Dr. Rosenzweig’s specific causation opinion.
Coloplast promptly moved for summary judgment on the
grounds that Arevalo lacked competent specific causation evi-
dence. Seeing the writing on the wall, Arevalo moved for recon-
sideration of parts of the district court’s order excluding Dr.
Rosenzweig’s opinions and for the first time asked for an eviden-
tiary hearing. The district court denied the motion.
Arevalo made one last attempt to salvage her case. On July
27, 2020, less than three weeks after the district court excluded Dr.
Rosenzweig’s specific causation opinion, she had her first and only
appointment with Dr. John Miklos (who had served as a retained
expert in other pelvic mesh cases). On January 26, 2021 — nearly
three months after Coloplast’s motion for summary judgment was
fully briefed and with trial less than two months away6 — Arevalo
filed a supplemental Rule 26 expert witness disclosure naming Dr.
Miklos as a non-retained expert witness and treating physician. She
attached a case report Dr. Miklos prepared in which he opined that
based on a “differential diagnosis” process, the mesh implants are
the sole cause of her pain. Coloplast moved to strike the disclosure
under Federal Rule of Civil Procedure 37(c) as untimely. The
6 In February 2021, the parties agreed to continue trial to November 2021 for
reasons related to the COVID-19 pandemic.
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8 Opinion of the Court 21-11768
district court agreed that the disclosure was untimely and excluded
Dr. Miklos’ testimony.
Having resolved the expert witness issues, the district court
turned to Coloplast’s motion for summary judgment. It granted
Coloplast summary judgment on all remaining claims, finding that
Arevalo lacked sufficient proof of specific causation without Dr.
Rosenzweig’s excluded testimony. Arevalo timely appealed the fi-
nal judgment, listing in her notice of appeal the Daubert order ex-
cluding Dr. Rosenzweig’s opinions, the order excluding Dr. Mi-
klos’ testimony, and the order granting summary judgment.
III. DISCUSSION
A. Dr. Rosenzweig
We begin with the question of whether the district court
properly excluded Dr. Rosenzweig’s specific causation opinion that
Coloplast’s mesh implants caused Arevalo’s pain. We review for
abuse of discretion a district court’s Daubert rulings. Chapman v.
Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir.
2014). A district court has abused its discretion if it “applied an in-
correct legal standard, followed improper procedures, or made
clearly erroneous findings of fact.” Crawford v. ITW Food Equip.
Grp., LLC, 977 F.3d 1331, 1338 (11th Cir. 2020). We must apply
this standard “stringently, even if a decision on expert testimony is
outcome determinative.” Chapman, 766 F.3d at 1305 (quotation
marks omitted).
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“[W]e engage in a rigorous three-part inquiry” to determine
the admissibility of expert testimony under Federal Rule of Evi-
dence 702: (1) the expert must be qualified, (2) his methodology
must be sufficiently reliable as determined by the sort of inquiry
mandated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and (3) his testimony must assist the trier of fact.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc). This appeal concerns the second prong — the reliability of
Dr. Rosenzweig’s differential diagnosis methodology.
To evaluate the reliability of a scientific expert opinion, the
district court assesses “whether the reasoning or methodology un-
derlying the testimony is scientifically valid and whether that rea-
soning or methodology properly can be applied to the facts in is-
sue.” Id. at 1261–62 (alteration adopted and quotation marks omit-
ted). There can’t be too great an analytical gap between the data
and the expert’s opinion, and the expert cannot bridge this gap with
mere ipse dixit. Guinn v. AstraZeneca Pharms. LP, 602 F.3d 1245,
1255–56 (11th Cir. 2010). As the proponent of Dr. Rosenzweig’s
expert opinion, Arevalo has the burden of establishing its reliabil-
ity. Frazier, 387 F.3d at 1260.
Dr. Rosenzweig intended to offer the opinion that within a
reasonable degree of medical certainty, the Aris and Exair mesh im-
plants directly caused Arevalo’s pelvic pain, vaginal pain, pain dur-
ing intercourse, frequent UTIs, urinary and fecal incontinence, and
mesh removal procedure. In his case-specific expert report, Dr.
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Rosenzweig explained that he arrived at this specific causation
opinion by employing a differential diagnosis methodology.
The differential diagnosis methodology is “a medical process
of elimination whereby the possible causes of a condition are con-
sidered and ruled out one-by-one, leaving only one cause remain-
ing.” Chapman, 766 F.3d at 1308 (quotation marks omitted). It
requires three steps: “(1) the patient’s condition is diagnosed, (2) all
potential causes of the ailment are considered, and (3) differential
etiology is determined by systematically eliminating the possible
causes.” Id. To be reliable, a differential analysis “need not rule
out all possible alternative causes” but “must at least consider other
factors that could have been the sole cause of the plaintiff’s injury.”
Id. at 1308–09 (quotation marks omitted).
If properly followed, differential diagnosis can be a reliable
methodology under Daubert. Id. at 1309. But “an expert does not
establish the reliability of his techniques or the validity of his con-
clusions simply by claiming that he performed a differential diag-
nosis on a patient.” McClain v. Metabolife Int’l, Inc., 401 F.3d 1233,
1253 (11th Cir. 2005). “[A] differential diagnosis that fails to take
serious account of other potential causes may be so lacking that it
cannot provide a reliable basis for an opinion on causation.” Guinn,
602 F.3d at 1253 (quotation marks omitted).
Dr. Rosenzweig’s expert report stated that he had used a dif-
ferential diagnosis methodology, but it was short on details. The
entirety of his report about that methodology was this:
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Based upon my medical education, experience, my
review of the currently available medical literature,
and [Arevalo’s] medical records, I have formed opin-
ions regarding her current complications. In coming
to these conclusions, a broad differential diagnosis
was reviewed and considered her medical and surgi-
cal history, which includes: she was a G3 P3. Her
medical history includes: Kidney stones, Asthma, Bi-
polar disorder, Headaches, rectocele, cystocele, uter-
ine prolapse, Human papilloma virus and dysplasia of
uterine cervix. Her surgical history was remarkable
for T.L. and LEEP procedure. None of these condi-
tions lead to the current injuries she is suffering from.
I ruled out the hysterectomy as there are no findings
of tenderness at the vaginal cuff.
1. The District Court’s Daubert Order
Coloplast moved to exclude as unreliable Dr. Rosenzweig’s
specific causation opinion, arguing that he did not perform an ade-
quate differential diagnosis methodology because he failed to pro-
vide a medically sound basis for how he ruled out aspects of Are-
valo’s medical history as possible alternative causes. Coloplast at-
tached to its motion Dr. Rosenzweig’s case-specific expert report
and a few pages of his case-specific deposition transcript. Arevalo
responded that Dr. Rosenzweig reviewed her medical records and
properly ruled out other potential causes, but she did not attach
or even refer to any part of Dr. Rosenzweig’s deposition testimony.
Instead she relied exclusively on his expert report.
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The district court granted Coloplast’s motion, finding that
Dr. Rosenzweig did “not explain how he systematically and scien-
tifically ruled out the other potential causes” for Arevalo’s condi-
tion, “such as her rectocele, cystocele, or uterine prolapse.” With-
out more information about how he had ruled out potential alter-
native causes, the court could not ensure that he had made a relia-
ble differential diagnosis. In excluding Dr. Rosenzweig’s differen-
tial diagnosis methodology, the district court excluded his entire
specific causation opinion.
The district court did not abuse its discretion when it ex-
cluded Dr. Rosenzweig’s specific causation opinion. In his cursory
report, Dr. Rosenzweig offered no explanation — let alone any sci-
entific support — for ruling out the potential alternative causes that
he had identified (other than the hysterectomy). A reliable differ-
ential diagnosis requires the expert to offer some explanation for
how he ruled out an alternative cause. Hendrix ex rel. G.P. v.
Evenflo Co., 609 F.3d 1183, 1197 (11th Cir. 2010); see also Chap-
man, 766 F.3d at 1310 (“The expert must provide reasons for reject-
ing alternative hypotheses using scientific methods and procedures
and the elimination of those hypotheses must be founded on more
than subjective beliefs or unsupported speculation.”) (quotation
marks omitted). Dr. Rosenzweig’s assurances that he had done a
differential diagnosis are not enough to establish the reliability of
his methodology. McClain, 401 F.3d at 1253.
Arevalo argues that the district court should not have faulted
Dr. Rosenzweig for failing to explain why he ruled out Arevalo’s
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21-11768 Opinion of the Court 13
rectocele, cystocele, and uterine prolapse. According to Arevalo,
there was no need to rule out those potential causes because the
Exair mesh fixed her rectocele and cystocele, and it was impossible
for her to still have uterine prolapse because she no longer had a
uterus. Arevalo’s argument is wrong on the facts about the cysto-
cele; the record shows that during the mesh removal procedure,
Dr. Kahn found that Arevalo had another cystocele. And, in any
event, it is not Arevalo’s post hoc explanations that matter to the
reliability analysis. The district court’s criticism of Dr. Rosenzweig
for omitting an explanation for ruling out those three potential
causes is valid. 7 See, e.g., Hendrix, 609 F.3d at 1197; Chapman, 766
F.3d at 1310.
7 Citing the law of the case doctrine, Arevalo also suggests that the district
court reversed the MDL court’s transfer order when it allowed Coloplast to
challenge the differential diagnosis methodology in its re-briefed Daubert mo-
tion even though it had not done so in its MDL briefing. Arevalo’s law of the
case argument fails because the district court did not reverse the MDL transfer
order. Indeed, the MDL order itself acknowledged that the parties had filed
dispositive and Daubert motions that were to be resolved by the transferee
court.
“District courts have unquestionable authority to control their own dockets,”
which includes “broad discretion in deciding how best to manage the cases
before them.” Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir.
2014) (quotation marks omitted). The district court in this case ordered re-
briefing on the Daubert motion because it decided that was the best way to
make the correct ruling on that motion. The district court did not abuse its
discretion in doing so.
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2. The District Court’s Denial of Reconsideration
Arevalo next contends that the district court erred when it
refused to reconsider its order excluding Dr. Rosenzweig’s specific
causation opinion. We review a district court’s decision about
whether to reconsider its own interlocutory order only for abuse
of discretion. See Harper v. Lawrence County, 592 F.3d 1227,
1231–32 (11th Cir. 2010); Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 805–06 (11th Cir. 1993).
It wasn’t until Arevalo moved for reconsideration that she
gave the court the complete transcript of Dr. Rosenzweig’s deposi-
tion and pointed out the specific testimony relevant to his differen-
tial diagnosis. This oversight occurred even though, according to
Arevalo, Dr. Rosenzweig’s differential diagnosis methodology was
fleshed out in his deposition testimony.8 Citing the legal standard
for reconsideration of a final judgment, Arevalo argued that it
would be manifestly unjust for the district court to decline to re-
consider its Daubert order in light of the full deposition testimony.
The district court denied reconsideration. It agreed with
Arevalo that the only grounds for granting reconsideration are
newly discovered evidence or manifest errors of law or fact. See,
8 Arevalo never explained to the district court why she failed to provide or
reference the deposition testimony when she first opposed the Daubert mo-
tion to exclude Dr. Rosenzweig’s differential diagnosis methodology. The tes-
timony was available for nearly a year before she filed her response in opposi-
tion to Coloplast’s Daubert motion. She now concedes that attaching the
complete deposition transcript to her response “might’ve been best practice.”
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21-11768 Opinion of the Court 15
e.g., Samara v. Taylor, 38 F.4th 141, 149 (11th Cir. 2022) (reviewing
the denial of a motion for reconsideration under Federal Rule of
Civil Procedure 59(e)). For this reason, it explained, a party cannot
use a motion for reconsideration “to relitigate old matters, raise ar-
gument or present evidence that could have been raised prior to
the entry of judgment.” Id. (quotation marks omitted). It then
found that Arevalo had not met this high bar for reconsideration:
she either rehashed old arguments or presented evidence (the dep-
osition testimony) that was available while the Daubert motion
was pending.
Arevalo argues that the district court abused its discretion by
applying the standard for reconsideration of final judgments under
Rules 59(e) or 60(b). 9 She asserts the court should have used its
inherent power under Rule 54(b) to reconsider its own interlocu-
tory order. See Fed. R. Civ. P. 54(b) (“[A]ny order or other deci-
sion, however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a [final] judgment.”); Toole
v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000)
(“Since an order granting a new trial is an interlocutory order, the
district court has plenary power over it and this power to
9 “A motion for reconsideration made after final judgment falls within the am-
bit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b)
(motion for relief from judgment or order).” Region 8 Forest Serv. Timber
Purchasers Council, 993 F.2d at 806 n.5.
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16 Opinion of the Court 21-11768
reconsider, revise, alter or amend the interlocutory order is not
subject to the limitations of Rule 59.”) (quotation marks omitted).
If the district court erred by applying the wrong standard,
the error was invited. 10 Arevalo urged the district court to apply
the legal standard for reconsideration under Rule 59(e). She can’t
now complain that the district court applied the standard she re-
quested. See EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d
524, 528 (11th Cir. 1990) (declining to reverse the district court’s
decision where the appellant had invited error as to the application
of the wrong legal standard); FTC v. AbbVie Prods. LLC, 713 F.3d
54, 65–66 (11th Cir. 2013). 11
10Though Coloplast did not argue that Arevalo invited error, we apply the
doctrine anyway. See United States v. Brown, 934 F.3d 1278, 1301 (11th Cir.
2019).
11 Arevalo briefly asserts that even under Rule 59(e)’s reconsideration stand-
ard, the district court clearly erred because Dr. Rosenzweig’s full deposition
established that the court initially misunderstood Arevalo’s medical history,
including the significance of her rectocele, cystocele, and uterine prolapse. But
motions for reconsideration may not be used to present testimony that could
have been introduced earlier. See, e.g., Grange Mut. Cas. Co. v. Slaughter,
958 F.3d 1050, 1059–60 (11th Cir. 2020). Denial of a Rule 59(e) motion for
reconsideration “is especially soundly exercised” when, as here, “a party gives
no reason for not previously raising an issue.” Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quotation marks omitted). And as
discussed, the district court did not err, much less clearly err, by finding that
Dr. Rosenzweig’s expert report failed to explain how he ruled out Arevalo’s
rectocele, cystocele, or uterine prolapse. So under the standard the district
court applied, it did not abuse its discretion in denying reconsideration.
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B. Dr. Miklos
Arevalo next challenges the district court’s decision to strike
her belated disclosure of Dr. Miklos. Federal Rule of Civil Proce-
dure 26(a)(2)(D) requires a party to disclose the identities of her ex-
pert witnesses at the time and in the sequence the court orders.
Rule 26(e)(1)(A) requires a party to supplement these disclosures
“in a timely manner” if she later learns that in some material respect
they are incomplete or incorrect. If a party violates those disclosure
requirements, Rule 37 sanctions may be applied. See Fed. R. Civ.
P. 37(c)(1). One of those sanctions is that “the party is not allowed
to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial,” unless the failure to disclose “was sub-
stantially justified or is harmless.” Id. The court may also impose
“other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(C).
The district court found that Arevalo had violated Rule 26.
Her disclosure came more than three years after the court’s dead-
line for disclosing specific causation experts, and even if it could be
considered a supplemental disclosure under Rule 26(e) it was not
made “in a timely manner.” At Arevalo’s appointment with Dr.
Miklos in July 2020, the doctor told her that the mesh implants
were the cause of her pelvic pain. So Arevalo could have and
should have disclosed him as an expert witness in July 2020 instead
of six months later at the end of January 2021. The court found
that the late disclosure was neither substantially justified nor harm-
less, and it excluded Dr. Miklos’ testimony under Rule 37(c)(1).
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We review a district court’s Rule 37(c)(1) decision only for
abuse of discretion. Crawford, 977 F.3d at 1341. When deciding
whether the exclusion of a late-disclosed witness was an abuse of
discretion, we “consider the explanation for the failure to disclose
the witness, the importance of the testimony, and the prejudice to
the opposing party.” Fabrica Italiana Lavorazione Materie Or-
ganiche, S.A.S v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776,
780 (11th Cir. 1982).
Applying those factors, we conclude that the district court
did not abuse its discretion by excluding Dr. Miklos’ testimony.
The record supports the district court’s findings that Arevalo didn’t
have a good reason for the late disclosure and that the disclosure
prejudiced Coloplast. Arevalo explains that she didn’t disclose Dr.
Miklos sooner because he wasn’t sure whether she had all her mesh
removed, and he wanted to obtain her medical records before sug-
gesting treatment. But as the district court pointed out, Dr. Miklos
received Arevalo’s medical records within days after her appoint-
ment with him. He had all the information he needed to form his
opinion in July 2020. Though Dr. Miklos may have needed time to
review the records, Arevalo could have immediately given notice
that he would be providing an expert opinion (even if he could not
yet make his final treatment recommendation). At the least, she
was aware of his causation opinion as early as July 2020 and should
have asked at that point for the disclosure deadline to be reopened.
As for the prejudice to Coloplast, Arevalo waited until after
the close of discovery to disclose Dr. Miklos’ opinions, which
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21-11768 Opinion of the Court 19
deprived Coloplast of an opportunity to depose the doctor or pre-
pare rebuttal evidence. The district court considered reopening
discovery but decided not to do so because it would have increased
litigation costs and delayed any trial. Coloplast may have needed
additional discovery for rebuttal, it would have likely filed another
Daubert motion, and its summary judgment motion would have
needed to be re-briefed.
The district court recognized that Dr. Miklos’ testimony was
“clearly important” to Arevalo’s case. But we have held that the
first and third factors together can outweigh the second. Romero
v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008); see also
Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1353
(11th Cir. 2004) (“Regardless of the importance of [the] testimony,
the reasons for the delay in the . . . disclosure and the consequent
prejudice that [the] testimony would have caused [the nonmoving
party] require us to affirm the district court’s ruling.”).
Our review of a district court’s Rule 37 sanctions decision is
limited and deferential. “[W]e will not reverse the imposition of
sanctions under Rule 37 unless we are left with a definite and firm
conviction that the court below committed a clear error of judg-
ment in the conclusion it reached upon a weighing of relevant fac-
tors.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1313 (11th Cir. 2011) (quotation marks omitted); see also OFS
Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1360
(11th Cir. 2008) (“Our review of a district court’s decision to impose
sanctions under Rule 37 is sharply limited to a search for an abuse
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20 Opinion of the Court 21-11768
of discretion and a determination that the findings of the trial court
are fully supported by the record”) (quotation marks omitted). We
conclude that the district court acted within its considerable discre-
tion when it struck Arevalo’s untimely disclosure of Dr. Miklos and
prohibited her from using his expert opinion testimony. See, e.g.,
Guevara v. NCL (Bah.) Ltd., 920 F.3d 710, 718–19 (11th Cir. 2019)
(concluding that the district court did not abuse its “broad discre-
tion” in striking a supplemental expert report where the plaintiff
unreasonably delayed in filing it until after the close of discovery
and after the defendant had filed its motion for summary judgment
and Daubert motions, and the plaintiff had done so without seeking
leave of court or moving to extend discovery). 12
12 Arevalo alternatively contends that the court abused its discretion by refus-
ing to impose a lesser sanction. She argues that because the grant of Colo-
plast’s motion to strike Dr. Miklos’ disclosure led to its summary judgment
victory, the exclusion of Dr. Miklos’ testimony ultimately “amounted to a dis-
missal.” According to Arevalo, to exclude the evidence entirely the district
court was required to find bad faith or willfulness.
We have not decided whether an untimely disclosure, even one that is not
substantially justified or harmless, always requires exclusion of the evidence.
Crawford, 977 F.3d at 1342 n.4. But we cannot say that the district court
abused its discretion by excluding Dr. Miklos’ testimony in its entirety. First,
“[o]ur caselaw is clear that only in a case where the court imposes the most
severe [Rule 37] sanction — default or dismissal — is a finding of willfulness
or bad faith failure to comply necessary.” BankAtlantic v. Blythe Eastman
Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994). The court did not
impose either of those Rule 37 sanctions. Instead, it excluded the testimony
of the witness. Second, the court did consider other options short of preclud-
ing Arevalo from using Dr. Miklos’ testimony but found that exclusion of the
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21-11768 Opinion of the Court 21
C. Summary Judgment
Finally, we consider Arevalo’s challenge to the grant of sum-
mary judgment in favor of Coloplast on her strict liability and neg-
ligence claims. Our review is de novo. See Chapman, 766 F.3d at
1312. Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
When a party fails to proffer sufficient evidence to establish an ele-
ment on which she will bear the burden of proof at trial, there is
no genuine dispute of material fact. Chapman, 766 F.3d at 1312.
To prove causation under Florida law, which applies to Are-
valo’s strict liability and negligence claims, the plaintiff must intro-
duce evidence that “it is more likely than not that the conduct of
the defendant was a substantial factor in bringing about the result.”
Guinn, 602 F.3d at 1256 (quoting Gooding v. Univ. Hosp. Bldg.,
Inc., 445 So. 2d 1015, 1018 (Fla. 1984)). To avoid summary judg-
ment in this products liability case, Arevalo must have “Daubert-
qualified, general and specific-causation-expert testimony that
would be admissible at trial.” Chapman, 766 F.3d at 1316. Dr.
Rosenzweig’s and Dr. Miklos’ specific causation opinions are inad-
missible. But Arevalo argues that Dr. Kahn’s opinions are enough
testimony was the appropriate remedy under the circumstances. It explained
that “[a]ny lesser sanction would frustrate the purpose and intent of Rule 26
and the discovery process and frustrate the orderly (and long-overdue) dispo-
sition of this case.” We are not persuaded that this was a clear error of judg-
ment. Josendis, 662 F.3d at 1313.
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22 Opinion of the Court 21-11768
to create a factual dispute about specific causation sufficient to
withstand summary judgment. We disagree.
Dr. Kahn testified that when she gave Arevalo a physical
exam and touched Exair mesh in the front vaginal wall, Arevalo felt
tenderness and pain (distinct from the pain at the site of her hyster-
ectomy scar). Dr. Kahn described the band of mesh as tight and
unpliable and thought that removing it would relieve the pain and
tenderness. She testified that after removing “a good portion” of
the front mesh, she felt an “appreciable decrease in the band” —
meaning that it had “loosen[ed]” — which gave her hope that Are-
valo’s pain would improve. And during Arevalo’s final post-op
exam, Dr. Kahn’s notes don’t reflect that Arevalo complained of
any tenderness.
But when it came to offering a causation opinion, Dr. Kahn’s
testimony was speculative and equivocal. When asked whether
the “pain that [Arevalo] had been experiencing before [the mesh
removal] was caused or contributed to have been caused by the
mesh,” Dr. Kahn answered, “It’s possible, but she didn’t come
back, so I don’t know.” She opined that the pain and tenderness at
the site of the front mesh implant were “more likely than not . . .
related to the graft,” but she didn’t know whether the mesh re-
moval procedure was successful in relieving the tenderness that
Arevalo had reported. She explained that the “real test” of the re-
moval surgery’s success would be if Arevalo no longer had pain
during intercourse. And Arevalo testified that after the surgery she
has continued to have that pain. Dr. Kahn also ruled out the mesh
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21-11768 Opinion of the Court 23
as a cause of Arevalo’s mixed urge and stress incontinence, urinary
urgency and frequency, fecal smearing, fecal incontinence, myal-
gia, and hysterectomy scar pain.
Dr. Kahn’s testimony is not enough to create a genuine issue
about whether the mesh implants were substantial factors in caus-
ing Arevalo’s injuries. 13 Because Arevalo lacks sufficient admissible
expert testimony on specific causation, Coloplast is entitled to sum-
mary judgment. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1295–
96 (11th Cir. 2005) (affirming summary judgment based on exclu-
sion of expert testimony on causation).
IV. CONCLUSION
The district court did not abuse its discretion by excluding
Dr. Rosenzweig’s specific causation opinion and Dr. Miklos’ expert
testimony. Nor did it err in granting summary judgment in favor
of Coloplast.
The final judgment of the district court is AFFIRMED.
13 There are lingering questions about whether Dr. Kahn’s specific causation
opinion was properly disclosed under Rule 26(a)(2)(C) and whether it could
survive Daubert scrutiny. The district court left these questions unanswered.
Because we do not believe that Dr. Kahn’s testimony creates a factual dispute
about specific causation in any event, we need not remand for the district
court to consider these issues.