IN RE: Bard IVC Filters Products Liability Litigation
2:15-md-02641
| D. Ariz. | Jan 22, 2018Background
- MDL involving thousands of personal-injury suits alleging defects in seven Bard IVC filter models (Recovery, G2, G2 Express, G2X, Eclipse, Meridian, Denali).
- Plaintiffs claim Bard filters tilt, perforate, fracture, migrate, and that Bard knew of higher risks but failed to warn; causes of action are state-law product and warranty claims.
- Plaintiffs disclosed Dr. Mark Eisenberg — an interventional cardiologist and clinical epidemiologist — to opine on filter safety, needed safety studies, interpretation of studies, and what physicians/patients need for informed consent.
- Bard moved to exclude large portions of Eisenberg’s opinion under Rule 702, arguing he is unqualified to offer opinions on corporate intent, legal duties, other physicians’ reactions, and that some of his testimony is narrative or common-sense rather than expert.
- The court granted the motion in part: excluding opinions about Bard’s ethics, intent, corporate knowledge, what Bard should have done, common-sense readings of documents, and opinions about how other physicians would act; it left room for permissible expert testimony within Eisenberg’s epidemiologic/clinical expertise and limited factual explanation necessary to support opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of opinions about Bard’s ethics, intent, and corporate state of mind | Eisenberg may explain what Bard should have done and what safety steps were required based on safety signals and medical standards | Such opinions invade legal conclusions, exceed his expertise, and are improper expert testimony on corporate intent | Excluded: Eisenberg may not testify about Bard’s ethics, intent, corporate knowledge, or what Bard should have done under Rule 702 |
| Use of professional/ethical guidelines to define manufacturer duties | Guidelines inform what physicians need for informed consent and thus relate to safety obligations | Guidelines do not establish legal duties of manufacturers; Eisenberg lacks regulatory/pharmacovigilance expertise | Limited: Eisenberg may discuss physician information needs but cannot use those guidelines to define legal duties of manufacturers |
| Narrative and factual recitation from company documents | Plaintiffs say narrative supports his opinions and helps jury understand context | Defendants say factual narratives circumvent proper evidence presentation and jury factfinding | Limited: Experts may explain factual bases for opinions but gratuitous or lengthy factual narratives are disallowed; court will police at trial |
| Opinions about how other physicians would react to Bard data | Eisenberg can explain what information physicians need for informed consent and how they would use safety data | Eisenberg lacks experience implanting/removing filters and has not studied IVC-filter physician practice; therefore unqualified to speak for other physicians | Excluded: Eisenberg may not opine about how other physicians would respond or what most physicians would have done |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeper must ensure expert testimony rests on reliable foundation and is relevant)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Rule 702 gatekeeping applies to all expert testimony, not only scientific)
- Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594 (9th Cir. 1996) (proponent bears burden to show expert admissibility)
- In re Baycol Prods. Liab. Litig., 532 F. Supp. 2d 1029 (D. Minn. 2007) (expert opinions about corporate ethics and responsibilities inadmissible)
- In re Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004) (physicians’ ethical opinions about corporate conduct are inadmissible)
- Tillman v. C. R. Bard, Inc., 96 F. Supp. 3d 1307 (M.D. Fla. 2015) (expert testimony about a manufacturer’s intent or internal practices is beyond proper expert bounds)