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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

          ORDER

          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 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.

         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.[1]

         The 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.[2] 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 filters.

         Dr. 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.

         Defendants 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.

         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)). While the Court's power to disqualify an expert witness is clear, determining when it should be exercised can be difficult.

         Courts 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).

         The 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 *2.

         Some 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. 22, 2016).

         In this case, the parties address disqualification under both the bright-line rule and the two-part test. The Court will follow suit.[3]

         III. ...


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