United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
G. CAMPBELL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. 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.
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.
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
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).
Opinions Based on Dr. Kessler's Report.
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.
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