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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

April 27, 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. Doris Jones, an individual, Plaintiff,

          ORDER

          David G. Campbell United States District Judge.

         Plaintiff Doris Jones has filed a motion for reconsideration of the Court's order excluding evidence of deaths caused from cephalad migration of the Recovery filter under Rule 403. Doc. 10873. Defendants have filed a response. Doc. 10899. The Court will deny the motion in part as set forth below.

         I. Background.

         The 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. Doc. 10805. The Court took two matters under advisement: whether evidence of the design, testing, and complications 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.

         Several days later, the Court issued an order finding that evidence of the design, testing, and complications of the Recovery filter is relevant to Ms. Jones' case and should not be excluded under Rule 403. Doc. 10819 at 2-3. The Court further found, however, that evidence of deaths caused by Recovery filters migrating to a patient's heart has only marginal relevance in Ms. Jones' case. Id. at 3-5. The Court held that the minimal probative value of the evidence is substantially outweighed by the danger of unfair prejudice because the death evidence may prompt a jury decision based on emotion. Id. at 5-6.

         II. Discussion.

         Plaintiff argues that the Court's decision is based on a false premise because cephalad migration continued to be associated with deaths in later devices, including the Eclipse. Doc. 10874 at 4-5. Plaintiff further argues that cephalad migration is relevant and substantially similar to her claims. Id. at 6-7. Finally, Plaintiff contends that the death evidence cannot reasonably be extracted from the overall complication evidence, and its exclusion would unreasonably curtail her proof in this case. Id. at 7-10.

         Plaintiff's arguments and supporting evidence could have been presented to the Court in earlier briefing and argument. As a result, Plaintiff has not identified a legitimate basis for reconsideration. See LRCiv 7.2(g)(1); Nicole-Pickett v. Wells Fargo Bank, N.A., No. CV-16-03262-PHX-DGC, 2016 WL 7187988, at *1 (D. Ariz. Dec. 12, 2016); Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993). Because of the importance of this issue, however, the Court will address each of Plaintiff's arguments.

         A. The Evidentiary Basis for the Court's Ruling.

         At the April 13 hearing, counsel for Plaintiff agreed that there has been very little cephalad migration after the Recovery filter, in part because the G2 filter was given a wider design to correct the cephalad migration problem. Doc. 10874-1 at 4. Counsel was not able to identify any instance of cephalad migration causing death in the G2 or later filters. Id. at 3-4. Plaintiff now claims that a review of thousands of complaints in Bard's Trackwise database shows that cephalad migration was not eliminated by later-generation filters, and that deaths caused by cephalad migration continued after the Recovery. Doc. 10874 at 4-6. A careful review of Plaintiff's evidence shows otherwise.

         1. Evidence of cephalad migration deaths.

         Plaintiff claims that two cases of cephalad migration by Eclipse filters resulted in patient deaths. Doc. 10874 at 5 (citing Complaint Nos. 313635, 354264); Doc. 10874-2 at 2-3, 33-99. Although both cases involved cephalad migration of an Eclipse filter and a patient's death, the evidence presented by Plaintiff does not show that the migrations caused either of the deaths.

         In the first incident, records provided by Plaintiff show that the Eclipse filter did not migrate to the patient's heart; it migrated above the renal veins due to a large clot burden. Doc. 10874-2 at 34. The patient later died due to pulmonary embolism, but the death occurred after the Eclipse filter had been removed and replaced with a competitor's device. According to the records provided by Plaintiff, the treating physician reported that “the Bard filter did its job.” Id.

         In the second incident, the Eclipse filter migrated “within proximity to the right atrium” of the heart due to a “clot burden within the filter extending down into the patient's legs.” Id. at 73-76. The patient later died, possibly due to pulmonary embolism. Id. The record provided by Plaintiff suggests that the cause of death was never determined because the coroner chose not to do an autopsy, and ...


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