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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

February 21, 2018

IN RE Bard IVC Filters Products Liability Litigation


          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”). 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.

         I. Background.

         The IVC 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.

         Each 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.

         The 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.

         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 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 a High Level of Certainty.

         Plaintiffs 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.

         Defendants 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.

         The 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 ...

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