IN RE: Bard IVC Filters Products Liability Litigation
2:15-md-02641
| D. Ariz. | Jan 22, 2018Background
- MDL concerning thousands of personal-injury suits alleging defects in seven Bard IVC filter models (Recovery, G2, G2 Express, G2X, Eclipse, Meridian, Denali). Plaintiffs claim tilt, perforation, fracture/migration, and inadequate warnings.
- Bard moves to exclude opinions of plaintiffs’ expert Dr. Darren Hurst; motion was fully briefed and argued Jan 19, 2018. Court issued order Jan 22, 2018 denying the motion in part and granting in part.
- Dr. Hurst is an experienced interventional radiologist who implants/removes IVC filters and reviewed literature and some Bard internal documents; he offered opinions across bellwether cases (Booker, Hyde, Jones, Kruse, Mulkey).
- Defendants seek exclusion of three opinion categories: (1) that Bard filters have higher complication rates and an “unacceptable risk” of caudal migration; (2) that Bard ignored safety signals, failed to study, and misrepresented filter improvements; (3) that Bard failed to communicate that Meridian should be used instead of G2X/Eclipse.
- Court applied Rule 702/Daubert/Kumho standards and found Dr. Hurst qualified to testify on physician/patient expectations and informed consent, but limited testimony where he lacked reliable facts, methods, or specialized knowledge about Bard’s internal decisions or undisputed population-level complication rates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Hurst may opine that Bard filters have higher complication rates than other filters | Hurst may rely on clinical experience, discussions, and literature to show higher rates | Hurst lacks studies/data and reliable methodology to conclude higher complication rates | Excluded: Hurst cannot opine that Bard filters in fact have higher complication rates (may state conditional opinion about disclosure) |
| Whether Hurst may testify that G2 posed an "unacceptable risk" of caudal migration | Hurst cites Bard internal "Wong" analysis and his clinical judgment to support the claim | Reliance on an internal memo and no independent verification makes the opinion unreliable | Excluded: Hurst cannot opine that G2 posed an unacceptable risk absent reliable facts/methods (may testify conditionally about disclosure) |
| Whether Hurst may opine about Bard's internal knowledge, testing, and truthfulness of representations | Hurst contends Bard ignored safety signals and misrepresented improvements | Bard argues Hurst lacks corporate, regulatory, or design/testing expertise and adequate factual basis | Excluded: Hurst cannot render opinions about Bard's internal processes, knowledge, or general truthfulness |
| Whether Hurst may opine that Bard failed to communicate Meridian use versus Eclipse/G2X (Mulkey; Jones/Hyde) | Hurst says Bard should have communicated Meridian as preferable (Mulkey) | Bard says Hurst lacks knowledge of what Mulkey's physician was told and lacks clinical comparative data; Meridian not on market for Jones/Hyde | Limited: Opinions excluded for Jones and Hyde (Meridian unavailable); Mulkey reserved for trial — may be admissible depending on trial context |
Key Cases Cited
- Lust v. Merrell Dow Pharm., 89 F.3d 594 (9th Cir.) (proponent bears burden to show expert qualifications and admissibility)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (expert testimony must rest on reliable foundation and be relevant)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Rule 702 gatekeeping extends to non-scientific expert testimony)