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”).
Plaintiffs have filed a motion to exclude the opinions of
Drs. Clement Grassi and Christopher Morris (collectively, the
“Doctors”). Doc. 7324. The motion is fully
briefed, and the parties agree that oral argument is not
needed. The Court will deny the motion.
is a large vein that returns blood to the heart from the
lower body. IVC filters are small metal devices implanted in
the IVC to catch blood clots before they reach the heart and
lungs. This MDL involves seven different versions of Bard
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 injury or
death. Plaintiffs, among other things, 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 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 Bard filters are
safe and effective and that the medical community is aware of
the risks associated with IVC filters.
Doctors are interventional radiologists whom Defendants have
identified as expert witnesses on various issues related to
Bard filters. Plaintiffs do not dispute that the Doctors have
expertise in the field of interventional radiology. Rather,
Plaintiffs seek to exclude certain opinions purportedly based
on (1) the criminal law standard of certainty, and (2)
speculation and anecdotal personal experience. Doc. 7324.
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 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 a High Level of Certainty.
seek to exclude Dr. Morris's testimony that he
“reached a high level of certainty in his
opinions” which means “more than 90
percent.” Doc. 7324 at 3-4 (citing Doc. 7324-2 at
18-21). Plaintiffs similarly object to Dr. Grassi's
testimony that in forming his opinions he looks for evidence
that makes him feel “certain beyond any reasonable
doubt.” Id. at 5 (citing Doc. 7324-2 at 44).
This testimony should be excluded, Plaintiffs contend,
because Daubert does not require scientific
testimony to be known to a certainty. Id. at 7-8;
Doc. 8209 at 3. But Daubert addressed the threshold
reliability requirements for admissibility under Rule 702,
noting that although certainty is not required, expert
testimony must be based on “more than subjective belief
or unsupported speculation.” 509 U.S. at 590.
Daubert says nothing about the exclusion of
testimony where the expert is certain of his opinions.
note, correctly, that the essence of Plaintiffs'
objection seems to be that the Doctors are too
certain of their opinions. Doc. 7797 at 2. Plaintiffs explain
in their reply that the problem is not that the Doctors hold
their opinions to a high degree of certainty, but that they
“applied the heightened standard in forming their
opinions.” Doc. 8209 at 3 (emphasis in original).
Plaintiffs assert that the Doctors' testimony will
confuse and mislead the jury and prejudice Plaintiffs by
requiring them to prove their case to a higher level of
certainty than the law requires. Id. But the Court,
not the Doctors or any other witnesses, will instruct the
jury on the law, and the instructions given will include the
appropriate burdens of proof in a civil case. See
Doc. 9433 at 15.
Court will not exclude testimony regarding the Doctors'
certainty of their opinions. If Plaintiffs believe the
Doctors are attempting to instruct the jury on legal
standards, they may object. If Plaintiffs ...