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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

February 15, 2018

IN RE Bard IVC Filters Products Liability Litigation
v.
C. R. Bard, Inc., a New Jersey corporation; and Bard Peripheral Vascular, Inc., an Arizona corporation, Defendants. Sherr-Una Booker, an individual, Plaintiff,

          ORDER

          David G. Campbell United States District Judge

         The parties have filed various motions in limine (“MIL”) in advance of the Booker bellwether trial. This order will rule on some of those motions.

         A. Defendants' MIL No. 4 (Photograph of Michael Randall).

         Plaintiffs wish to introduce a photograph of Michael Randall, Bard's G2 Platinum project leader, flipping off the camera. Plaintiffs contend that the photograph is relevant because it was included in an internal Bard Powerpoint on the G2 Platinum. Bard asserts that the photograph was included in the Powerpoint presentation as an internal joke. Plaintiffs admit that “we don't know to whom this gesture was directed” (Doc. 9911 at 3), but they argue that it nonetheless is relevant as an indication of Bard's cavalier corporate culture.

         Because even Plaintiffs don't know to whom the gesture was directed, the Court cannot conclude that it is relevant to any claims or defenses in this case. And even if the photograph were to have some marginal relevancy, such relevancy is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. Even Plaintiffs admit that “the middle finger picture is indeed inflammatory.” The motion in limine (Doc. 9865) is granted. The photograph will not be admitted.

         B. Defendants' MIL No. 5 (Dr. Kinney's work for Bard).

         Defendants seek to exclude evidence that Plaintiffs' expert witness, Dr. Thomas Kinney, was an expert witness for Bard in two prior IVC filter cases and was a paid consultant to Bard for several years. Doc. 9868. Plaintiffs argue that this prior work is relevant because it “provides context for his opinions and his motivation to become an expert witness for the Plaintiffs, ” shows Bard's “lack of transparency with doctors and consultants, and the seriousness of the problems with its IVC filters, ” and shows a “corporate culture within Bard that disregarded concerns of consultants and patient safety.” Doc. 9914 at 2-3.

         The Court is not persuaded by Plaintiffs' arguments. In opposing Defendants' motion to disqualify Dr. Kinney on the basis of his prior work for Bard, Plaintiffs argued vigorously that the prior work had nothing to do with this lawsuit. Plaintiffs asserted that “[n]one of [Dr. Kinney's consulting] work related to the issues discussed, subject matter, or bases of the opinions rendered in his report in this MDL.” Doc. 5803 at 6, n.2. Plaintiffs argued that his work for Bard from 2005 to 2008 had “absolutely nothing to do with the issues and causes of action in this MDL.” Id. at 9. And they claimed that his work as an expert witness for Bard did not “even remotely relate[] to the issues and subject matter of Dr. Kinney's expert report in this MDL.” Id. at 3. Given these strenuous assertions, the Court cannot accept Plaintiffs current argument that Dr. Kinney's work for Bard provides “context for his opinions, ” shows “a lack of transparency” with respect to the issues in this case, or shows a corporate culture of disregard for patient safety. Doc. 9914 at 2-3. By Plaintiffs' own declaration, his prior work for Bard is simply not relevant to the issues in this case. The Court will grant Defendants' motion in limine. Doc. 9868. Plaintiffs may not question Dr. Kinney about his prior work for Bard, and should instruct him not to mention it in his testimony. If Plaintiffs believe Defendants make the prior work relevant by the nature of their cross examination at trial, they can raise that issue with the Court outside the hearing of the jury.

         C. Plaintiffs' MIL No. 2 (benevolent activities).

         Plaintiffs seek to exclude evidence and argument relating to (1) any alleged benevolent activities such as charitable acts or services Bard provides to patients or society, (2) Bard's “good character” in general, and (3) the quality and intent of its workforce as a whole. Doc. 9866. In response, Defendants state that they will not present evidence that they “engaged in benevolent activities such as providing scholarships or making charitable contributions.” Doc. 10053 at 1 n.1. Defendants do intend, however, to present evidence regarding the nature, quality, and usefulness of their products, the conscientiousness of their employees, references to their mission statement, and the fact that their products are designed to promote health and save lives. Id. at 2-3. Defendants assert that such evidence is relevant background information and is also necessary to rebut Plaintiffs' punitive damages claim that Defendants acted in a willful, malicious, and reckless manner.

         The Court concludes that some evidence regarding the nature of Defendants' business is relevant to the jury's understanding of the issues in this case. The Court also concludes that Defendants' must be permitted to rebut Plaintiffs' themes, stated repeatedly throughout briefing on the expert motions, that Defendants knowingly disregarded patient safety, used patients for experimentation, and placed profits over safety.

         Countering Plaintiffs' punitive damages arguments does not mean, however, that Defendants can present irrelevant evidence or try this case on the basis of corporate character. See Fed. R. Evid. 404(a). The Court will draw appropriate lines on the basis of objections made during trial. Plaintiffs' motion in limine (Doc. 9866) is denied.

         D. Plaintiffs' MIL No. 5 (evidence not produced in complaint files).

         Plaintiffs ask the Court to exclude evidence and argument relating to failure rates, complication rates, percentages, or comparative analysis of any injuries that were not produced to Plaintiffs during discovery. Doc. 9870. Defendants assert that all such information was produced. Doc. 10060. Plaintiffs' motion in limine (Doc. 9870) is denied as moot. If ...


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