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James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, AZ 85004-2204 

Telephone: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Richard B. North, Jr. (admitted pro hac vice) 

Georgia Bar No. 545599 

Matthew B. Lerner (admitted pro hac vice) 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH LLP 

Atlantic Station 

201 17th Street, NW, Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

Attorneys for Defendants 

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation 

No. 2:15-MD-02641-DGC

DEFENDANTS C. R. BARD, INC.’S 

AND BARD PERIPHERAL 

VASCULAR, INC.’S REPLY IN 

SUPPORT OF MOTION TO 

EXCLUDE THE OPINIONS OF 

THOMAS KINNEY, M.D., ANNE 

CHRISTINE ROBERTS, M.D., AND 

SANJEEVA KALVA, M.D. 

(Assigned to the Honorable David G. 

Campbell) 

(Oral Argument Requested)

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In their Response,1 the Plaintiffs do not address many of Bard’s arguments and 

citations to authority. The Plaintiffs also accuse Bard of “selectively distort[ing] their 

[experts’] testimony as well as the relevant case law” (Pls. Resp. Br. (Doc. 7812), at 2), 

which Bard does not think is accurate. Finally, the Plaintiffs recast many of Bard’s 

arguments by inaccurately describing Bard’s positions and then citing portions of the 

record and case law that either are distinguishable or do not bear on the issues raised in 

Bard’s Motion. For these reasons, the Plaintiffs have not met their burden of proof for 

admissibility of the opinions of Drs. Kinney, Roberts, and Kalva that Bard moved to 

exclude. 

A. The Doctors’ Reliance on Rule 26 Reports of Other Experts Is Improper 

Under Rule 703 in this Case. 

In their careers as physicians and academics, Drs. Kinney, Roberts, and Kalva have 

never seen or relied on (1) opinions formed for litigation (i.e., the opinions of Drs. 

Kessler, Ritchie, and Betensky, which they cite throughout their Rule 26 Report), (2) 

internal company documents, and (3) internal company analyses. (Mot. (Doc. 7296), at 2-

3.) As such, their reliance on this material in litigation is unreasonable and should not be 

permitted under Rule 703. See, e.g., Weinstein & Berger, Weinstein’s Evidence Manual § 

13.03[2][c] (2016) (“Since Rule 703 is concerned with the trustworthiness of the resulting 

opinions, the proponent of the expert must establish that experts other than the proposed 

witness would act upon the information relied upon, and would do so for purposes other 

than testifying in a lawsuit.” (citations omitted)). The Plaintiffs do not address Bard’s 

argument in their Response. 

Instead, the Plaintiffs raise numerous issues that do not bear on the Rule 703 

analysis. First, they claim that Drs. Kinney, Roberts, and Kalva “directly sought [alleged 

1

 Plaintiffs filed a separate Omnibus Statement Of Law And Generally-Applicable 

Arguments In Opposition To Bard’s Motions To Exclude Plaintiffs’ Experts Under Rule 

702 And Daubert (Doc. 7799). Plaintiffs’ Omnibus Statement is not directed at any 

specific Daubert motion Bard filed. As such, Bard does not respond to the Omnibus 

Statement but instead will address any necessary issues in the context of its individual 

Daubert replies. 

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safety] information from Bard when they became concerned about the safety of the 

Recovery and G2 filters.” (Pls. Resp. Br., at 5, 6.) The Plaintiffs only cite testimony from 

Dr. Kinney, however, where he answered a question about how the Rule 26 Report was 

prepared (“We basically used the document by Dr. Kessler is what we did . . . .”) and he 

discussed performance characteristics of retrievable IVC filters in general, not Bard filters 

specifically. (Kinney Dep. Tr., at 73:23 to 75:19, excerpt attached as Exhibit A.) Second, 

the Plaintiffs also claim that “Dr. Kinney expected that the company would tell him what 

it knew,” (Resp. at 6), but the testimony cited is vague and was in the context of Dr. 

Kinney consulting for Bard. Third, the Plaintiffs argue that “Indisputably, the Experts—

and the entire community of interventional radiologists—would have welcomed the 

information Bard produced in this litigation . . . .” But the Plaintiffs cite no testimony and 

no authority to support their assertion. See, e.g., I.N.S. v. Phinpathya, 464 U.S. 183, 188-

89 n.6 (1983) (“Counsel’s unsupported assertions in respondent’s brief do not establish 

that respondent could satisfy [the applicable legal test].”). 

Because the Plaintiffs neither address Bard’s argument nor raise arguments that 

bear on the Rule 703 analysis, the Court should exclude the doctors’ opinions premised on 

others’ opinions formed for litigation, internal documents, and internal analyses. 

B. The Doctors’ Reliance on Rule 26 Reports of Other Experts Is Improper 

Under Rule 702 in this Case. 

Whether an expert may rely on the findings of others turns on whether the relying 

expert conducted an independent evaluation of the evidence to allow him or her to reach 

reliable opinions under Rule 702. See, e.g., In re ConAgra Foods, Inc., 302 F.R.D. 537, 

556 (C.D. Cal. 2014) (“[A]n expert can appropriately rely on the opinions of others if 

other evidence supports his opinion and the record demonstrates that the expert conducted 

an independent evaluation of that evidence.”) (citations omitted); Cholakyan v. MercedesBenz, USA, LLC, 281 F.R.D. 534, 544 (C.D. Cal. 2012) (“an expert can appropriately rely 

on the opinions of others if other evidence supports his opinion and the record 

demonstrates that the expert conducted an independent evaluation of that evidence”). 

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The Plaintiffs cite several cases in their response briefing and “Omnibus Statement 

of Law” in which the experts satisfied the “independent evaluation” requirement to reach 

their opinions. Jerpe v. Aerospatiale, No. CIV. S-03-555 LKK/DAD, 2007 WL 1394969, 

at *6 (E.D. Cal. May 10, 2007) (finding that the expert at issue in a product liability action 

concerning a helicopter blade independently conducted a visual inspection of the blade; 

evaluated photographs, x-rays, and ultrasounds; and independently arrived at the same 

opinions as contained in another expert’s report); Gray v. United States, No 05cv1893 

J(BLM), 2007 WL 4644736, at *8 (S.D. Cal. Mar. 17, 2007) (noting that the expert relied 

on numerous sources of information other than another expert’s report in forming her 

opinions).2 These cases, however, stand in contrast to the approach that Drs. Kinney, 

Roberts, and Kalva took in arriving at their opinions. Nearly all of the “Opinions” section 

of their Rule 26 Report concerning Bard’s internal documents are derived directly from 

the reports of Drs. Kessler, Ritchie, and Betensky, not “thousands of pages of documents 

and testimony” or “their own published, peer-reviewed research and that of their 

colleagues.”3 In fact, throughout their entire 114-page Rule 26 Report, Bard could only 

find two internal company documents cited by Drs. Kinney, Roberts, and Kalva that were 

not discussed in other experts’ Rule 26 Reports, and principally were discussed in Dr. 

Kessler’s Report. These facts underscore Dr. Kinney’s repeated testimony that “The main 

source for my document was the Kessler report,” and not an independent evaluation of 

2

 Although the Plaintiffs cite In re Toyota Motor Corp. Unintended Acceleration 

Marketing, Sales Practices, and Products Liability Litigation, 978 F. Supp. 2d 1053, 1066 

(C.D. Cal. 2013), repeatedly in their Omnibus Statement of Law and Response Brief, to 

argue that an “expert’s opinion was admissible because he reviewed other types of data, 

not solely other experts’ opinions,” (Omnibus Statement (Doc. 7799) at 7; Pls. Resp. Br., 

at 7), the issue of whether the expert properly relied on the other experts was not before 

that court. Rather, the defense challenged the admissibility of the opinion as unreliable 

because it was based solely on the plaintiff’s testimony, which the court pointed out was 

inaccurate. In re Toyota, 978 F. Supp. 2d at 1066. And Mesfun v. Hagos, No. CV 03-

02182 MMM (RNBx), 2005 WL 5956612, at *18 (C.D. Cal. Feb. 16, 2005), concerns 

Rule 703, not Rule 702 as Bard argues here. 

3

 While the experts discuss medical literature and their view of the SIR Guidelines, the 

discussions are limited to their own sections of the report, and nothing in the report draws 

comparisons between the medical literature, SIR Guidelines, and Bard’s internal 

documents that are cited. Additionally, Bard is not challenging the admissibility of the 

experts’ opinions about the medical literature and SIR Guidelines. 

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other evidence that supports the opinions expressed in the Rule 26 Report. (Mot. at 3 

(quoting numerous other language throughout Dr. Kinney’s deposition to the same 

effect).) 

The Plaintiffs claim that “the record is clear that the Experts independently 

evaluated every source document cited in the reports of Drs. Kessler, Ritchie, and 

Betensky to ensure coherence with their analyses,” and that Drs. Kinney, Roberts, and 

Kalva “carefully scrutinized the[se] experts’ underlying data in developing their own 

opinions.” (Resp. at 6, 7.) These assertions, however, appear to be inaccurate. 

Dr. Kinney testified as follows: 

Q. But as far as reviewing the underlying data cited by Dr. Ritchie, Dr. 

Betensky, and Dr. Kessler, am I correct that other than the specific documents 

that you were curious about when you were reviewing Dr. Kessler’s report,4

that you have not reviewed any other underlying data cited by either [sic] of 

those three reports? 

MR. JOHNSON: Form. 

You can answer. 

THE WITNESS: I would agree with that as a general statement, yes. 

(Ex. E to Mot., 223:9-18.) 

The Plaintiffs likewise claim that Dr. Kalva, who wrote only the last nine pages of 

the 114-page Rule 26 Report, “reviewed every document cited in the reports of Drs. 

Kessler, Betensky, and Ritchie.” (Resp. at 8.) But this statement also appears to be 

inaccurate. Dr. Kalva testified that all of the documents that he reviewed were provided 

via DropBox (Kalva Dep. Tr., 165:12-21, attached as Exhibit B.) The DropBox folder 

that the experts received, however, only contained the documents cited on the “Facts and 

4

 Referring to Dr. Kinney’s previous testimony that “if I had trouble reading one of 

Kessler’s things, and I was looking for something to grasp or hard to read, I wanted to 

look and see, so I would pull that document up,” and Dr. Kinney did not do this until three 

months after he signed his report. (Ex. A, Kinney Dep. Tr., 20:12 to 21:10; 95:22 to 96:4; 

96:9-12.) When writing the Rule 26 Report, however, he was given only a handful of 

documents (approximately 20, by his guess) via a DropBox folder, which “was back-up 

material. The main source for my document was the Kessler report.” (Id.) Of the handful 

of documents that he received via DropBox, he did not read all of them. (Id. at 81:19 to 

82:7.) 

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Data Considered” list appended to the doctors’ Rule 26 Report. (Ex. A, Kinney Dep. Tr., 

82:17-20.) And the “Facts and Data Considered” list of the doctors’ Rule 26 Report lists 

only 42 internal Bard documents, contrasted with approximately 650 internal Bard 

documents cited in the Reports of Drs. Kessler, Ritchie, and Betensky. (Ex. G to Mot.) 

Neither the Plaintiffs nor the doctors have identified any list of “facts or data considered 

by the doctors in forming their opinions,” as required by Rule 26(a)(2)(B)(ii), beyond the 

42 internal Bard documents on the “Facts and Data Considered” list in the doctors’ Rule 

26 Report. 

Finally, the Plaintiffs cite testimony of Dr. Roberts, which actually verifies that she 

did not independently evaluate all of the data underlying Dr. Kessler’s report (“I did go 

back and look at some of those memos and some of those references . . . .” (Resp. at 8.)) 

and which says nothing about the reports of Drs. Ritchie and Betensky. Dr. Roberts also 

testified that she does not remember what data was available for her to “independently 

review,” and that she assumed that Drs. Kessler, Ritchie, and Betensky used reliable data 

and methodologies. (Roberts Dep. Tr., 244:16 to 245:18, July 7, 2017, excepts attached as 

Exhibit C.) 

In sum, by their own admission, Drs. Kinney, Roberts, and Kalva did not 

independently evaluate the evidence in arriving at their opinions concerning Bard’s 

internal documents, but rather relied on the Rule 26 Reports of Drs. Kessler, Ritchie, and 

Betensky. As such, all of their opinions derived from these reports should be excluded. 

C. The Plaintiffs Do Not Address Bard’s Argument that Summaries and 

Editorials of Internal Documents and Deposition Testimony Are Unhelpful 

The Plaintiffs recast Drs. Kinney, Roberts, and Kalva’s Rule 26 Report as 

“testimony about Bard’s internal documents [that] will provide a contextual and factual 

foundation for their opinions as interventional radiologists with specialized knowledge of 

IVC filters and how IVC filters are intended to function in the human body.” (Resp. at 

11.) Undoubtedly, Drs. Kinney, Roberts, and Kalva can provide medical context about 

IVC filter clinical studies, the IVC filter medical literature, and the human anatomy 

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relative to their practice as interventional radiologists—Bard is not challenging the 

admissibility of such opinions. Rather, Bard is challenging opinions that simply 

summarize documents and testimony (which were largely selected for them by Plaintiffs’ 

counsel5), followed by editorials from the doctors expressing their concern about the 

documents and actions that Bard should have taken. The Plaintiffs do not address the 

merits of this argument. 

Consider a few of the many such examples from their Rule 26 Report. Paragraphs 

144 through 148 summarize and quote numerous internal Bard documents about adverse 

events. Drs. Kinney, Roberts, and Kalva opine, “[i]t is our opinion that this information 

was important for physicians to know. This data raises safety concerns . . . . [We expect] 

Bard would immediately recall and stop selling the Recovery Filter.” (Ex. G to Mot, at ¶ 

148.) Similarly, Paragraphs 152 through 160 summarize internal Bard documents about 

adverse events, changes in the design specifications between the Recovery and G2 Filters, 

and results of bench testing of the G2 Filter. Drs. Kinney, Roberts, and Kalva then opine, 

“In our opinion, this is concerning . . . .” (Id. at ¶ 160.) These examples reflect the general 

formula that Drs. Kinney, Roberts, and Kalva used to write a large portion of their report: 

summarize and quote internal Bard documents, opine that the documents are concerning, 

and then opine that Bard should have done something differently. But the doctors never 

cite to any sources of authority to support their opinions, they give no indication that their 

opinions have been tested or peer reviewed, their opinions have no known rate of error, 

they have not been published, and the physicians have not identified their view as 

generally accepted in the medical community. Such opinions amount to unhelpful 

5

 The Plaintiffs spend a portion of their argument claiming that the physicians “decided 

which documents to include as references in their report,” which appears to be accurate, 

but does not address the fact that the Plaintiffs’ lawyers selected the documents that Drs. 

Kinney, Roberts, and Kalva received. As Dr. Kinney testified, “I didn’t specifically 

request them, but they were in this – in Kessler’s report,” which was prepared using 

documents that the Plaintiffs’ lawyers selected and summarized for Dr. Kessler. (Ex, A, 

Kinney Dep. Tr., 82:21 to 83:10.) The Plaintiffs challenge Bard to put these lawyerselected documents into context with the roughly 1.5 million documents produced in the 

litigation, but their argument has no bearing on whether Drs. Kinney, Roberts, and Kalva 

should be permitted to quote/summarize and editorialize about Bard’s documents. 

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summaries of an infinitesimal number of documents produced in the litigation, along with 

the doctors’ ipse dixit opinions about the documents. Daubert v. Merrell Dow Pharms., 

Inc., 43 F.3d 1311, 1319 (9th Cir. 1995), cert. denied, 516 U.S. 869 (1995) (“We’ve been 

presented with only the experts’ qualifications, their conclusions and their assurances of 

reliability. Under Daubert, that’s not enough.”). 

The case law that the Plaintiffs cite in their Omnibus Statement of Law and 

Response brief does not support admissibility of the doctors’ quotations, summaries, and 

personal opinions. Rather, the Plaintiffs’ cases support Bard’s argument that such 

material should be excluded, as do the many cases that Bard cited in its Motion (none of 

which the Plaintiffs addressed in their Response or their Omnibus Statement of Law). For 

example, in Staub v. Breg, Inc., No. CV 10-02038-PHX-FJM, 2012 WL 1078335, at *3 

(D. Ariz. Mar. 30, 2012), Judge Martone found in a pain pump product liability action that 

the plaintiffs’ regulatory expert “will generally not be allowed to simply read documents 

that the jurors may read and interpret for themselves,” but rather must “provide some 

analysis, opinion, or expertise when testifying about the regulatory process and history of 

pain pumps.” Thus, the expert could not simply recite documents to the jury, was “not 

permitted to give an opinion based on her ‘subjective belief or unsupported speculation,’” 

and had to offer “objective standards.” Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 

509 U.S. 579, 590 (1993)). Judge Martone concluded, much like the quotations/ 

summaries and personal opinions here, that anything “grounded on nothing more than her 

personal views will be excluded.” Id.; Johnson v. Wyeth LLC, No. CV 10-02690-PHXFJM, 2012 WL 1204081, at *3 (D. Ariz. Apr. 11, 2012) (finding that regulatory experts 

would not be permitted to recite or summarize documents, but must provide analysis, 

opinion, or expertise in the regulatory process; and that they may not offer opinions about 

defendants’ knowledge or state of mind).6

6 United States v. Newmont USA Ltd., No. CV-05-020-JLQ, 2007 WL 4856859, at *3 

(E.D. Wash. Nov. 16, 2007), which the Plaintiffs also cite, is inapposite to the facts in the 

Bard IVC filter litigation. There, the court found that when the events at issue in the 

lawsuit took place three decades earlier, and where the fact finder must necessarily rely on 

testimonial narratives, the court permitted an expert historian to testify about nearly thirty 

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Finally, the Plaintiffs’ assertion that “narrative” objections should be reserved for 

trial does not address Bard’s Daubert argument that personal summaries and editorials 

(i.e., opinions grounded on nothing more than personal views, which fail to meet any of 

the Daubert factors) about lawyer-selected documents are unhelpful to the jury and should 

be excluded. As illustrated by the many cases that Bard cited in footnote 3 of its Motion, 

these issues are routinely decided at the Daubert stage, although Bard agrees that the 

parties should be able to raise objections at trial to the extent that experts’ testimony runs 

afoul of the Court’s Daubert rulings. 

For each of these reasons, the Court should preclude Drs. Kinney, Roberts, and 

Kalva from summarizing and editorializing about deposition testimony and internal Bard 

documents based on nothing more than their personal opinions. 

D. Drs. Kinney, Roberts, and Kalva’s Opinions about the “Reasonable 

Expectations” of Physicians and How a “Reasonable Physician” Would 

Think and Act Regarding Information Are Inadmissible. 

In its Motion, Bard argued that the opinions of Drs. Kinney, Roberts, and Kalva 

about the “reasonable expectations” of physicians and how a “reasonable physician” 

would think and act on information are inadmissible because they are not grounded in any 

reliable sources of authority and they do not satisfy any of the Daubert factors (i.e., they 

have not been tested or peer reviewed, they have no known rate of error, they have not 

been published, and the physicians have not identified their view as generally accepted in 

the medical community). In support of its argument, Bard cited numerous prescription 

product liability cases that excluded expert opinions about what other physicians think and 

how other physicians should, or would have, acted. The Plaintiffs, however, do not 

address any of the cases that Bard cited, nor do they address the fact that Drs. Kinney, 

Roberts, and Kalva’s opinions do not satisfy any of the Daubert factors. 

Rather, the Plaintiffs argue that the informed consent process, and a practice 

guideline about informed consent, provide a sufficient basis to admit Drs. Kinney, 

years’ worth of documentary evidence expressing different historical understandings of 

events and a conflicting historical record. 

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Roberts, and Kalva’s opinions. As the party bearing the burden of proof, however, the 

Plaintiffs have not identified a single case where opinions about “reasonable expectations” 

of a physician and how a “reasonable physician” would act in an informed consent context 

were admitted in a product liability case.7 Moreover, informed consent is not an element 

of any claim or defense, as it is strictly a medical malpractice concept, the Plaintiffs have 

cited nothing to the contrary, and the doctors’ opinions therefore do not “fit” the case. 

Finally, the ACR-SIR-SIR-SPR Practice Parameter on Informed Consent for ImageGuided Procedures, attached hereto as Exhibit D, that Drs. Kinney, Roberts, and Kalva 

identify in their Report says nothing about the information required to satisfy informed 

consent. Instead, the Practice Parameters say that they “are not intended, nor should they 

be used, to establish a legal standard of care.” (Id. at 1.) When asked at her deposition 

whether she had any written authority supporting the doctors’ opinion that certain 

information from Bard was required to satisfy the informed consent Practice Parameters, 

Dr. Roberts cited no authority and provided a personal opinion. (Ex. C, Roberts Dep. Tr., 

at 296:6-19.) “Q. That’s the Dr. Roberts’ standard, correct? A. Well, we’ll have to get 

100 people in a room and find out.” (Id. at 296:21-25.) As discussed in Bard’s Motion, 

these are classic, ipse dixit, and inadmissible opinions. 

The Plaintiffs also cite several cases from the Ninth Circuit, but the cases do not 

bear on whether experts in product liability litigation can offer opinions about “reasonable 

expectations” or how “reasonable physicians” think and act in an informed consent 

context. 8 Finally, the Plaintiffs cite to testimony of several Bard fact and expert 

7

 The Plaintiffs’ footnote that Bard relies on the “learned intermediary” doctrine as an 

affirmative defense has no bearing on the admissibility of the opinions of Drs. Kinney, 

Roberts, and Kalva. Indeed, other than in the Fifth Circuit (which does not govern the law 

of any of the bellwether cases), no other jurisdiction accepts an objective-evidence 

standard concerning the learned intermediary doctrine. See, e.g., Fields v. Eli Lilly & Co., 

116 F. Supp. 3d 1295, 1306 (M.D. Ala. 2015) (citing cases). Rather, other jurisdictions 

require subjective evidence of how the treating physician would have responded to certain 

information. Id. 

8 Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 2010) (finding that an expert’s opinion 

may be admitted when the expert used “the ordinary methodology of evidence-based 

medicine” to develop his opinion in contrast to the lack of any identified methodology 

proffered in this case by Drs. Kinney, Roberts, and Kalva to support their opinions about 

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witnesses. (Pls. Resp. Br., at 14-15.) Much of this testimony, however, is taken out of 

context; Bard is not offering any of the testimony as expert opinions in this litigation; and 

the testimony does not change the ipse dixit nature of Drs. Kinney, Roberts, and Kalva’s 

opinions. 

For each of these reasons, Drs. Kinney, Roberts, and Kalva should not be permitted 

to opine about the “reasonable expectations” of physicians and how a “reasonable 

physician” would think and act. 

E. Drs. Kinney, Roberts, and Kalva Are Unqualified To Offer Opinions about 

IVC Filter Engineering and the Suitability of Bard’s Bench Testing of Its 

IVC Filters. 

The fact that “for decades, the Experts have inserted IVC filters in countless 

patients, have removed filters that tilted, migrated, perforated and/or fractured, and 

published numerous papers describing complications with these devices” (Pls. Resp. Br., 

at 15) does not qualify the doctors to offer opinions about the proper or required testing 

that Bard should have undertaken with its IVC filters. Bard cited numerous cases to this 

effect (Mot. at 12-13), none of which the Plaintiffs addressed in their Response. 

Other than the fact that Dr. Kinney has a Master’s degree in mechanical 

engineering that he received in 1979 and for a brief period in the early 1980s helped with 

design work for angioplasty balloons, vascular claims, and a cardioplagia jacket for use 

during open heart surgery (see Mot. at 11), the Plaintiffs have not identified anything in 

the last 30 years of his career that would qualify him to give the engineering and bench 

“reasonable expectations of physicians” and how a “reasonable physician” would think 

and act); United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (finding that a police 

officer with years of experience working undercover with gang members amounted to 

expertise not developed through the scientific method, which stands in contrast to the 

scientific and medical issues in this litigation); Harbeson v. Parke Davis, Inc., 746 F.2d 

517 (9th Cir. 1984) (providing a general statement of Washington state’s informed 

consent doctrine in a medical malpractice case, not a product liability case); Saint 

Alphonsus Med. Ctr. - Nampa, Inc. v. St. Luke's Health Sys., Ltd., No. 1:12-CV-00560-

BLW, 2014 WL 407446 (D. Idaho Jan. 24, 2014) (antitrust case involving acquisition of a 

group of healthcare providers in a given geographic area where the expert testified that 

“interoperability is both a business imperative as well as national policy” in the context of 

integrated medicine, and having nothing to do with what a “reasonable physician” thinks 

or does). 

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testing opinions that he offers. Dr. Kinney’s work with Bard concerning IVC filters 

related to placing and removing the filters in animals and providing clinical input about 

the use of filters. (Pls. Resp. at 15; Ex. A, Kinney Dep. Tr., 196:12; 313:18-21.) And Dr. 

Kinney’s work as Chair of data safety monitoring boards for clinical trials involving IVC 

filters concern clinical aspects of filters, not evaluations of engineering and bench tests. 

(Pls. Resp. at 15-16.) 

Likewise, the Plaintiffs have not identified anything in the background of Dr. 

Roberts related to bench testing and engineering issues concerning IVC filters. Rather, 

they point to clinical work that she has done with IVC filters over the years, as well as 

study design and FDA panel work concerning evaluation of clinical data about devices. 

(Resp. at 6.) 

And the Plaintiffs have not identified anything in the background of Dr. Kalva 

related to bench testing and engineering issues concerning IVC filters beyond a vague 

reference to “developing a patent for an IVC filter design” with no detail about Dr. 

Kalva’s role in the patent or design. (Pls. Resp. Br., at 16.) 

The Plaintiffs cite no case law where a practicing physician who works extensively 

with the device at issue is qualified to provide opinions on engineering issues and bench 

testing issues solely by virtue of the physician’s clinical experience with the device. On 

the other hand, Bard has cited numerous, unrebutted cases where courts found that 

practicing physicians with extensive experience with the products at issue were not 

qualified to offer engineering and testing opinions. 

Finally, regardless of qualifications, Drs. Kinney, Roberts, and Kalva’s opinions 

about engineering and bench testing fall under the umbrella of Section C, above, because 

the experts provide no citations to sources of authority for their opinions, they give no 

indication that their opinions have been tested or peer reviewed, their opinions have no 

known rate of error, they have not been published, and the physicians have not identified 

their view as generally accepted in the medical community. Thus, their engineering and 

bench testing opinions are nothing more than ipse dixit personal opinions that should be 

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excluded. 

Conclusion 

The Plaintiffs have not met their burden of proof that the sweeping opinions of Drs. 

Kinney, Roberts, and Kalva should be admitted. Accordingly, the Court should limit the 

opinions of Drs. Kinney, Roberts, and Kalva to their proper areas of expertise concerning 

their clinical experience with IVC filters and their interpretation of the medical literature. 

RESPECTFULLY SUBMITTED this 18th day of October, 2017. 

s/ Richard B. North, Jr.

Richard B. North, Jr. 

Georgia Bar No. 545599 

Matthew B. Lerner 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

James R. Condo (#005867) 

Amanda Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

PH: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 18th day of October 2017, the foregoing was 

electronically filed with the Clerk of Court using the CM/ECF system which will 

automatically send email notification of such filing to all attorneys of record. 

s/ Richard B. North, Jr. 

Richard B. North, Jr. 

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