United States District Court, D. Arizona
G. Campbell, United States District Judge.
Court held a hearing with the parties on April 13, 2018, to
discuss matters decided for the Booker trial that the parties
wish to have reconsidered for the Jones trial. The Court took
two matters under advisement: whether evidence of the
complications, testing, and design of the Recovery filter
should be admitted in the Jones trial, and whether evidence
of deaths caused by cephalad migration of the Recovery filter
should be admitted. These matters were the subject of
briefing before the hearing and argument during the hearing.
See Docs. 10677, 10707.
Doris Jones was implanted with a Bard Eclipse filter in
August 2010. The filter later fractured, and a strut migrated
to Ms. Jones' lung. She asserts claims for defective
design, failure to warn, fraudulent concealment, and punitive
Evidence of Recovery Filter Complications, Testing, and
note that the relevant progression of their retrievable
filter line is as follows: Recovery, G2, G2X, Eclipse. They
argue that the Eclipse filter at issue in this case is three
generations removed from the Recovery filter and that
complications with the Recovery therefore are not relevant to
the alleged design defects or failure to warn related to the
claims that design defects in the Eclipse trace directly back
to the Recovery, and that those defects can be understood
only in the context of the entire filter-line development.
Plaintiff asserts that problems with the Recovery led
directly to a poorly-tested set of changes in the G2 filter;
that those changes created other problems in the G2,
including tilt, fracture, and caudal migration (away from the
head); that the G2X and Eclipse filters were essentially the
same as the G2, adding only a retrieval hook and
electropolishing; and that Bard acted unreasonably in failing
to implement effective tests and design changes when
developing the G2, and, later, in failing to correct apparent
G2 problems, leading directly to the Eclipse defects that
caused Ms. Jones' injury. Doc. 10707.
Court concludes that the Recovery filter's complications,
testing, and design are relevant to this case. Those events
help explain the testing, development, and design of the G2,
and Plaintiff contends that the G2 was essentially the filter
she received. The history of the Recovery and how it led to
the G2 tends to make a fact in dispute - the allegedly
defective design of the Eclipse - more probable. Fed.R.Evid.
Court cannot conclude that evidence of the Recovery's
complications, testing, and design should be precluded under
Rule 403. The Court does not find such evidence to be
unfairly prejudicial - it is a relevant part of the Eclipse
filter's design history. Further, Plaintiff's counsel
presented much of the same evidence during the Booker trial.
Although the Court felt that Plaintiff's counsel were
less efficient in that trial than they could have been, the
Court will hold Plaintiff to the established time limits in
this case and concludes that Recovery filter evidence will
not result in a waste of time or confusion of the issues.
See Doc. 10587.
Evidence of Deaths Caused by Recovery Filter Cephalad
caused by the Recovery filter's cephalad migration
(toward the head) present a different question. Such deaths
might clear the threshold for relevancy in Rule 401 because,
as explained above, they are part of the history of the
filter line's development. But for several reasons the
Court finds this relevancy to be marginal in Ms. Jones'
the complication of cephalad migration did not continue in
any significant degree beyond the Recovery filter. As
Plaintiff's counsel admitted during the April 13 hearing,
changes made in response to cephalad migration largely
eliminated that direction of migration in the G2 and later
filters. The Court's notes from the Booker trial reflect
that Plaintiff identified only one instance of cephalad
migration by a G2 filter. And Plaintiff's counsel
acknowledged during the hearing that they are not aware of
any instances of death caused by cephalad migration of G2,
G2X, or Eclipse filters.
the cephalad migration deaths all occurred before the
Recovery filter was taken off the market in late 2005. Ms.
Jones did not receive her Eclipse filter until January of
2010. The passage of more than four years and three filter
generations makes the cephalad migration deaths remote in
the cephalad migration deaths say nothing about several of
Ms. Jones' claims in this case: strict liability design
defect, strict liability failure to warn, negligent failure
to warn, or fraudulent concealment. Proof of the cephalad
migration deaths from the Recovery filter in 2004 and 2005
does not show that the Eclipse filter had a design defect
when it left Defendants' control several years later, or
that Defendants' later warnings regarding the Eclipse
were inadequate or fraudulent.
cephalad migration deaths arguably are more relevant to Ms.
Jones' negligent design defect claim because they help
show the extent to which Defendants allegedly failed to
exercise reasonable care in designing and testing the G2
filter. But the things Defendants allegedly failed to do in
developing the G2 - perform a viable root cause analysis,
test adequately, follow established design principles - can
all be shown through Plaintiff's experts and without
mention of the cephalad migration deaths. The deaths arguably
could make these failures appear even more negligent because
Defendants were aware of severe consequences from the
Recovery's design, but they ...