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 one of Plaintiffs' expert witnesses,
Dr. Thomas Kinney. Doc. 5677. The motion is fully briefed,
and the Court heard arguments on December 15, 2017. The Court
will deny the motion.
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 engineers, medical professionals, and regulatory
experts. Dr. Kinney is a mechanical engineer, medical doctor,
and interventional radiologist. Plaintiffs retained him to
opine about the alleged design defects in Bard filters and
Bard's alleged failure to warn physicians who implant
them. Dr. Kinney and two colleagues, Drs. Anne Roberts and
Sanjeeva Kalva, coauthored an expert report that, among other
topics, addresses the information a physician would need to
know about an IVC filter's safety and efficacy in order
to conduct a proper risk-benefit analysis. See Doc.
5746-6 at 6-7. The report also discusses clinical and
testing data Bard possessed before marketing certain filters.
Id. The report concludes in part that Bard was aware
of design defects and high complication rates associated with
its filters and failed to adequately warn physicians of those
dangers. Id. at 19-29. Of the seven different
versions of Bard filters at issue in this MDL, Dr.
Kinney's report primarily addresses the Recovery and G2
Kinney previously served as consultant and expert witness for
Bard. In June 2006, Bard retained him as an expert witness in
Mattes v. C. R. Bard, Inc., a district court case
involving alleged perforation of the IVC caused by a Recovery
filter. Eight months later, Bard retained Dr. Kinney as an
expert witness in a state court case, Ennis v. Hospital
of the University of Pennsylvania, which involved
allegations that a Recovery filter had tilted and fractured.
Dr. Kinney also served as an IVC filter consultant to Bard
for several years beginning in 2005.
argue that Dr. Kinney must be disqualified because he has
engaged in classic “side switching.” Doc. 5677 at
2. Plaintiffs contend that disqualification is not warranted
because Dr. Kinney received no confidential information from
Bard that is relevant to this MDL. Doc. 5803 at 3-14.
Plaintiffs also contend that disqualification would be
unfairly prejudicial. Id. at 13-15.
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)). While the Court's power to disqualify an
expert witness is clear, determining when it should be
exercised can be difficult.
have developed two approaches. The first, often referred to
as the “bright-line rule, ” requires
disqualification “where it is undisputed that the
consultant was previously retained as an expert by the
adverse party in the same litigation and had received
confidential information from the adverse party pursuant to
the earlier retention.” Wang Labs., Inc. v. Toshiba
Corp., 762 F.Supp. 1246, 1248 (E.D. Va. 1991). Many
cases recognize this rule. See, e.g.,
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); Rhodes v. E.I. Du Pont de Nemours &
Co., 558 F.Supp.2d 660, 665-66 (S.D. W.Va. 2008);
Howmedica Osteonics Corp. v. Zimmer, Inc., No.
05-cv-0897, 2007 WL 4440173, at *2 (D.N.J. Dec. 17, 2007).
second approach applies where “the parties dispute
whether the earlier retention and passage of confidential
information occurred.” Wang, 762 F.Supp. at
1248. It includes two parts: (1) whether it was reasonable
for the party seeking disqualification to believe it had a
confidential relationship with the expert, and (2) whether
the expert received confidential information relevant to the
current litigation. See id.; Bard Pelvic Repair
Sys., 2014 WL 6960396, at *7. When both questions are
answered “yes, ” the expert usually should be
disqualified. Id. Before making a final decision,
however, courts consider public policy factors, including
whether disqualification would be fair and promote confidence
in the legal system. See id.; Rhodes, 558
F.Supp.2d at 667-68; Howmedica, 2007 WL 4440173, at
courts decline to adopt either the bright-line rule or the
two-part test, but the essential factors remain the same: a
confidential relationship, disclosure of confidential
information, and policy considerations. See In re
Incretin Mimetics, 2015 WL 1499167, at *3-8;
Hewlett-Packard Co. v. EMC Corp., 330 F.Supp.2d
1087, 1095-96 (N.D. Cal. 2004); Kane v. Chobani,
Inc., No. 12-CV-02425-LHK, 2013 WL 3991107, at *5 (N.D.
Cal. Aug. 2, 2013); Auto-Kaps, LLC v. Clorox Co.,
No. 15 Civ. 1737 (BMC), 2016 WL 1122037, at *2 (E.D.N.Y. Mar.
case, the parties address disqualification under both the
bright-line rule and the two-part test. The Court will follow