United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
G. Campbell United States District Judge
multidistrict litigation (“MDL”) involves
thousands of personal injury cases related to inferior vena
cava (“IVC”) filters manufactured and marketed by
Defendants C. R. Bard, Inc. and Bard Peripheral Vascular,
Inc. (collectively, “Bard”). Bard has filed a
motion to disqualify four medical experts: Drs. Scott
Resnick, Robert Vogelzang, Kush Desai, and Robert
Lewandowski. Doc. 6678. The motion is fully briefed, and the
Court heard oral arguments on December 15, 2017. The motion
is moot with respect to Dr. Resnick, and will be denied for
the other doctors.
Plaintiff in this MDL received an implant of a Bard IVC
filter and claims that the filter is defective and has caused
serious injury or death. Plaintiffs allege that Bard filters
tilt, perforate the IVC, or fracture and migrate to
neighboring organs. Plaintiffs claim that Bard filters are
more dangerous than other IVC filters, and that Bard failed
to warn about the higher risks. Plaintiffs assert a host of
state law claims, including manufacturing and design defects,
failure to warn, breach of warranty, and consumer fraud and
unfair trade practices. Doc. 303-1. Bard disputes
Plaintiffs' allegations, contending that overall
complication rates for Bard filters are comparable to those
of other IVC filters, and the medical community is aware of
the risks associated with IVC filters.
parties intend to use various expert witnesses at trial,
including medical professionals. The doctors subject to the
present motion are colleagues at Northwestern
University's interventional radiology department. The
doctors formed a consulting group, SBBK Consultants, LLC
(“SBBK”), for purposes of IVC filter litigation.
Plaintiffs retained SBBK in this MDL, and Drs. Vogelzang and
Desai have provided three expert reports concerning medical
problems caused by alleged defects in Bard IVC filters.
Plaintiffs have listed Drs. Vogelzang and Desai as testifying
seek to disqualify each doctor, and SBBK as a whole, because
Dr. Resnick served as a consultant to Bard and previously
worked for Bard as an expert in IVC filter litigation. Doc.
6678. Given this prior relationship and Dr. Resnick's
involvement in drafting the expert reports, Defendants
contend that each SBBK expert effectively has engaged in
impermissible “side switching.” Id. at
do not oppose Dr. Resnick's disqualification. They
contend, however, that his colleagues should not be
disqualified because they had no confidential relationship
with Bard and received no Bard confidential information from
Dr. Resnick. Doc. 7029 at 1-3 & n.2. Plaintiffs further
contend that disqualification of Drs. Vogelzang and Desai as
testifying experts would be unfair. Id. at 12-14.
have inherent power to disqualify an expert witness to
protect the integrity of the adversary process, protect
privileges that otherwise may be breached, and promote public
confidence in the legal system.” In re Incretin
Mimetics Prods. Liab. Litig., MDL No. 13-md-2452 AJB,
2015 WL 1499167, at *2 (S.D. Cal. Apr. 1, 2015) (citing
Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th
Cir.1980)). Courts have developed two tests for the exercise
of this power, a bright-line rule and a two-part test.
bright-line rule applies where it is undisputed that the
expert was retained by, and received confidential information
from, one party and then switched sides in the same
litigation. Wang Labs., Inc. v. Toshiba Corp., 762
F.Supp. 1246, 1248 (E.D. Va. 1991). Where the parties
disagree on whether the expert had a confidential
relationship or received confidential information, courts
apply a two-part test that asks whether the party seeking
disqualification has shown (1) it was reasonable for the
party to believe that a confidential relationship existed,
and (2) the expert received or had reasonable access to
confidential information relevant to the current litigation.
Id.; see In re C. R. Bard, Inc. Pelvic Repair
Sys. Prods. Liab. Litig., MDL No. 2187, 2014 WL 6960396,
at *7 (S.D. W.Va. Dec. 8, 2014). Courts also consider public
policy factors, including whether disqualification would be
fair and promote confidence in the legal system.
Wang, 762 F.Supp. at 1248; Rhodes v. E.I. Du
Pont de Nemours & Co., 558 F.Supp.2d 660, 667-68
(S.D. W.Va. 2008).
response to Defendants' motion includes this statement:
Plaintiffs' Counsel did not know of Dr. Resnick's
past relationship consulting with Bard when they hired him as
a non-testifying consultant, and since learning of such, as a
result of Bard's motion (July 12, 2017), Plaintiffs'
Counsel represents that he has instructed Doctors Vogelzang
and Desai not to consult in any manner with Dr. Resnick on
this case going forward, and they have agreed and complied.
Thus, Dr. Resnick will not have any future role in this case,
and that aspect of the motion is moot.
Doc. 7029 at 2. In light of this avowal, the Court concludes
that the motion is moot with ...