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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

February 12, 2018

IN RE Bard IVC Filters Products Liability Litigation,

          ORDER

          DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE.

         This multidistrict litigation proceeding (“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 exclude the opinions of Drs. David Garcia and Michael Streiff (collectively, the “Doctors”). Doc. 7294. The motion is fully briefed, and the parties agree that oral argument is not necessary. The Court will grant the motion in part.

         I. Background.

         The IVC is a large vein that returns blood to the heart from the lower body. Blood clots develop in the IVC from a condition called venous thromboembolism or “VTE.” IVC filters are small metal devices implanted in the IVC to catch blood clots before they reach the heart and lungs.

         People at risk for VTE may be prescribed blood-thinning medications to help prevent blood clotting, but these medications do not prevent clotting for certain people at high risk for VTE and may not be an option for certain patients who could experience thromboembolic events during surgery. In those situations, physicians may recommend implanting an IVC filter to catch any blood clots before they reach a vital organ.

         IVC filters such as Bard's Simon Nitinol Filter (“SNF”) originally were designed to be implanted permanently. Because some patients need only temporary filters, medical device manufacturers such as Bard developed retrievable filters. This MDL involves seven different versions of Bard retrievable filters - the Recovery, G2, G2 Express, G2X, Eclipse, Meridian, and Denali.

         Each Plaintiff in this MDL was implanted with a Bard filter and claims it is defective and has caused serious injuries. Plaintiffs allege that Bard filters are more dangerous than other IVC filters because they have a higher risk of tilting, perforating the IVC, or fracturing and migrating to vital organs. Plaintiffs further allege that Bard failed to warn physicians and patients 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 that the medical community is aware of the risks associated with IVC filters.

         The Doctors are board-certified hematologists whom Plaintiffs have identified as expert witnesses. Dr. Garcia currently serves as the medical director of anti-thrombotic therapy and professor of hematology at the University of Washington. Dr. Streiff serves as the medical director of anticoagulation services and a professor of hematology at John Hopkins University. The Doctors have authored a joint expert report on physician expectations and the risks and benefits of IVC filters in the prevention and treatment of VTE. Doc. 7294-2 at 2-8.[1] They have also prepared a two-page addendum based on a review of Dr. Kessler's report. Id. at 9-10. Dr. Garcia has also offered opinions in the bellwether case brought by Plaintiff Doris Jones. Doc. 7299.

         Defendants do not dispute that the Doctors have expertise in the field of clinical hematology, nor do they seek to exclude their risk-benefit opinions. Rather, Defendants ask the Court to exclude three categories of opinions: (1) opinions based on Dr. Kessler's report, (2) physician expectations and Bard's corporate conduct, and (3) Dr. Garcia's opinions in the Jones case. Doc. 7302 at 2. The Court will address each category.

         II. Legal Standard.

         Under Rule 702, a qualified 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). An expert may be qualified to testify based on his or her “knowledge, skill, experience, training, or education.” Id.

         The proponent of expert testimony has the ultimate burden of showing that the expert is qualified and 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).

         III. Discussion.

         A. Opinions Based on Dr. Kessler's Report.

         The opinions set forth in the addendum should be excluded, Defendants argue, because the Doctors merely act as conduits for Dr. Kessler's opinions without having evaluated or verified his work. Doc. 7294 at 2-4. The Court agrees.

         In their report, the Doctors rely on their own clinical experiences treating patients with VTE and their research into the proper use of IVC filters to opine about physician expectations and the risks and benefits of IVC filters. Doc. 7294-2 at 5-8. Their addendum, by contrast, contains opinions unrelated to these subjects and for which the Doctors provide no methodology or foundation other than a review of Dr. Kessler's report. Id. at 9-10. The Doctors opine about Bard's knowledge and intent, the company's internal ...


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