Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

December 22, 2017

IN RE Bard IVC Filters Products Liability Litigation,



         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 motions to exclude the opinions of Drs. Thomas Kinney, Anne Christine Roberts, and Sanjeeva Kalva. Doc. 7296. The motion is fully briefed, and the Court heard arguments on December 15, 2017. The Court will grant the motion in part.

         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 complication rates for Bard filters are comparable to those of other IVC filters, and that 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 interventional radiologists whom Plaintiffs have identified as expert witnesses on various issues in this MDL. Defendants ask the Court to exclude four categories of opinions from these experts: (1) their reliance on expert reports of other doctors in forming their opinions; (2) their “summaries and editorials” concerning deposition testimony and a small percentage of the internal Bard documents produced in the litigation; (3) opinions about the “reasonable expectations” of physicians and how a “reasonable physician” would act upon receiving certain information regarding Bard filters; and (4) opinions about IVC filter engineering and the suitability of Bard's bench testing of its filters. Id. at 2-3. Plaintiffs oppose the motion. Doc. 7812. The Court will address each of Defendants' arguments.

         II. Legal Standard.

         Under Rule 702, an expert may testify on the basis of “scientific, technical, or other specialized knowledge” if it “will assist the trier of fact to understand the evidence, ” provided the testimony rests on “sufficient facts or data” and “reliable principles and methods, ” and “the witness has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(a)-(d). The proponent of expert testimony has the ultimate burden of showing, by a preponderance of the evidence, that the proposed testimony is admissible under Rule 702. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). The trial court acts as a gatekeeper to assure that expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702's requirements and the Court's gatekeeping role apply to all expert testimony, not just scientific testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

         III. Discussion.

         A. Reliance on Other Expert Reports and Bard Documents.

         Without identifying any particular opinion or a specific portion of the doctors' expert report (see Doc. 7301), Defendants ask the Court to preclude the doctors from providing any testimony that relies on the report of another expert or on internal Bard documents. Defendants assert that these are not sources of information on which doctors normally would rely as required by Federal Rule of Evidence 703. The Court is not persuaded.

         The rule for one expert's reliance on another expert's opinion has been well summarized by Judge Selna:

[E]xpert opinions may find a basis in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert. Indeed, this is common in technical fields. For example, a physician may rely for a diagnosis on an x-ray taken by a radiologist, even though the physician is not an expert in radiology. There is no general requirement that the underlying expert testify as well. There are limits to this general rule, however. Where the soundness of the underlying expert judgment is in issue, the testifying expert cannot merely act as a conduit for the underlying expert's opinion. Moreover, more scrutiny will be given to an expert's reliance on the information or analysis of another expert where the other expert opinions were developed for the purpose of litigation.

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 978 F.Supp.2d 1053, 1066 (C.D. Cal. 2013) (quotation marks, citation, and brackets omitted); see also E. Allen Reeves, Inc. v. Michael Graves & Assocs., Inc., No. 10-1393 (MAS), 2015 WL 105825, at *5 (D.N.J. Jan. 7, 2015) (“An expert . . . may rely on the opinion of another expert in formulating his or her opinion.”); Eaves v. United States, No. 4:07-CV-118-M, 2009 WL 3754176, at *9 (W.D. Ky. Nov. 5, 2009) (denying motion to preclude expert testimony because experts may rely upon the opinions of other experts); Weinstein's Federal Evidence, § 703.04[3] (2017) (Rule 703 permits experts to rely on “[o]pinions of other experts”) (citing cases). Thus, the Court does not agree with Defendants' assertion that some or all of the doctors' opinions must be excluded because they cite, refer to, or even rely on the opinions of other experts in this litigation. The doctors will not be permitted to parrot the opinions of other experts or to vouch for those experts, but they can rely on opinions stated by other experts.

         Nor can the Court conclude that the doctors' opinions should be excluded or limited because they rely on internal Bard documents. Those documents are factual evidence in this case, and experts clearly are permitted to take factual evidence into account. Rule 702 requires that experts base their testimony on sufficient facts and apply their expertise “to the facts of the case.” Fed.R.Evid. 702(b), (d). Indeed, the first sentence of Rule 703 specifically states that “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” The Court cannot accept Defendants' suggestion that an expert cannot rely on a factual source unless the expert previously relied on that source in his or her medical practice. See Weinstein's Federal ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.