IN RE: Bard IVC Filters Products Liability Litigation
2:15-md-02641
D. Ariz.Mar 9, 2018Background
- This MDL case involves Plaintiffs seeking to use deposition testimony of three defense-retained expert witnesses (Drs. Moritz, Rogers, and Stein) who have since been withdrawn by Defendants.
- Defendants object that the depositions are hearsay and not admissible as party-opponent admissions and that disclosure that the experts were originally retained by Defendants would be unfairly prejudicial.
- Plaintiffs argue withdrawn experts’ deposition testimony can be used "for any purpose" under Fed. R. Civ. P. 32(a)(4) and fits the former-testimony exception, Fed. R. Evid. 804(b)(1).
- The Court directed supplemental briefing on admissibility under Rule 32(a)(4) and Rule 804(b)(1) and considered Fed. R. Evid. 403 prejudice concerns and cumulative-evidence limits.
- The Court found the experts unavailable and ruled portions of their depositions may be used at trial if Plaintiffs show no similarly qualified live expert is available or the withdrawn expert has unique testimony; but the jury may not be told the experts were originally retained by Defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under Rule 32(a)(4) / Rule 804(b)(1) (former testimony) | Depositions of withdrawn defense experts are admissible for any purpose and fall within the former-testimony exception | Depositions are hearsay and should be excluded unless Plaintiffs reasonably tried and failed to secure live testimony and Defendants had similar motive to develop testimony | Depositions may be used; experts are unavailable and Defendants failed to show the testimony is inadmissible on hearsay grounds |
| Requirement to demonstrate reasonable efforts to obtain live testimony | Plaintiffs note subpoena attempts would be futile and experts qualify as unavailable under Rule 804(a)(5) | Defendants assert Plaintiffs should have used reasonable but unsuccessful means to procure live testimony | Court accepts experts are unavailable and finds Defendants did not meaningfully dispute similar-motive development during depositions |
| Disclosure to jury that experts were originally retained by Defendants | Plaintiffs say Defendants should not hide unfavorable retained-expert opinions from jury | Defendants say disclosure is unfairly prejudicial and could mislead jury about counsel conduct | Court prohibits informing jury of prior retention/withdrawal under Rule 403 — probative value substantially outweighed by unfair prejudice |
| Cumulative expert testimony / use of multiple experts | Plaintiffs seek to use withdrawn expert depositions to present needed opinions | Defendants warned against cumulative use of multiple experts on same issues | Court requires Plaintiffs to show no other similarly qualified expert is available or that the withdrawn expert offers unique testimony before allowing deposition use; Defendants may counter-designate portions |
Key Cases Cited
- Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422 (1997) (court addressing use of deposition testimony and hearsay arguments)
- In re Hanford Nuclear Res. Litig., 534 F.3d 986 (9th Cir. 2008) (discussing hearsay and admissibility principles)
- Tatman v. Collins, 938 F.2d 509 (4th Cir. 1991) (withdrawn-expert deposition admissibility under former-testimony exception)
- Peterson v. Willie, 81 F.3d 1033 (11th Cir. 1996) (recognizing prejudice from revealing prior retention by opposing party)
- Carter-Wallace, Inc. v. Otte, 474 F.2d 529 (2d Cir. 1972) (requiring showing that unavailable expert is unique or no similar expert exists to avoid cumulative expert testimony)
- Granger v. Wisner, 656 P.2d 1238 (Ariz. 1982) (concluding prior consultation by opposing party is irrelevant and may be prejudicial)