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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

December 21, 2017

IN RE Bard IVC Filters Products Liability Litigation,


          David G. Campbell United States District Judge

         This 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.

         I. Background.

         Each 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.

         The 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 experts.[1]

         Defendants 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 8.[2]

         Plaintiffs 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.

         II. Disqualification Standard.

         “Courts 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.

         The 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).[3]

         III. Dr. Resnick.

         Plaintiffs' 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 ...

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