Exhibit A

Case 2:15-md-02641-DGC Document 8220-1 Filed 10/18/17 Page 1 of 12
Deposition of:

Thomas Kinney , M.D.

June 17, 2017

In the Matter of:

In Re: Bard IVC Filters Products

Liability

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Case 2:15-md-02641-DGC Document 8220-1 Filed 10/18/17 Page 2 of 12
Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 before this deposition that I'm forgetting the name of,

2 and that had -- that had thousands of Bard documents on

3 it.

4 So the Dropbox was kind of limited, if you will,

5 entree -- entry, I guess, into the information. But

6 before this, there was another -- just about a week or

7 so -- in the last week or so, there was a pretty big

8 access with multi- -- a multiplicity of different -- and

9 that had Bard documents that had depositions. There

10 were -- There were thousands of different documents in

11 there.

12 Q. So let me just make sure I understand what

13 you're telling me.

14 About a week before today, you were given access to a

15 larger database that had many depositions and many Bard

16 documents --

17 A. Correct.

18 Q. -- is that right?

19 A. Correct.

20 Q. Before then you were given access to a Dropbox

21 file that contained approximately 20 depositions and some

22 limited number of Bard documents; is that correct?

23 A. Correct.

24 MR. JOHNSON: Form.

25 Go ahead.

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 BY MR. BROWN:

2 Q. And will you please ballpark the number of Bard

3 documents that were in that Dropbox.

4 A. I'm going to guess 20.

5 Q. Okay. Was the material that was provided to you

6 in the Dropbox folder the material that you reviewed and

7 relied upon in providing the opinions that are contained

8 in your expert report in this litigation?

9 A. It was back-up material. The main source for my

10 document was the Kessler report.

11 Q. So the material that was provided to you on the

12 Dropbox, you're saying, was just some back-up information;

13 but the primary source of what you relied upon in

14 authoring your report was the Kessler report?

15 MR. JOHNSON: Form.

16 BY MR. BROWN:

17 Q. Is that right?

18 A. Let me clarify a little bit more, or I guess

19 embellish. So there -- For instance, there was a 510(k)

20 that I reviewed for the original Simon Nitinol filter.

21 There was deposition from Dr. Asch that was in there,

22 as I recall.

23 Q. Okay. And those were part of the Dropbox

24 materials?

25 A. Correct.

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Case 2:15-md-02641-DGC Document 8220-1 Filed 10/18/17 Page 4 of 12
Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 Q. Would you agree that if you did ignore data that

2 weighs against the opinion that Bard's filters are

3 defective, that you would be applying the same level of

4 intellectual rigor in this case as you apply in your

5 private practice as a researcher and clinician?

6 MR. JOHNSON: Form.

7 THE WITNESS: I would say that I'm always

8 willing to look at data. If you have some data to show

9 me, I'd be happy to look at it and opine about it.

10 BY MR. BROWN:

11 Q. In drafting this report, did you take data and

12 information out of context?

13 A. I don't think so.

14 Q. If you did take data and information out of

15 context, would you agree that you wouldn't be applying the

16 same level of intellectual rigor to your work in this case

17 as you apply in your work as a clinician?

18 MR. JOHNSON: Form.

19 THE WITNESS: Again, I would say show me what

20 you don't agree with, and we'll look at it and make an

21 intelligent decision.

22 BY MR. BROWN:

23 Q. Okay. How was the report, which we marked as

24 Exhibit 4, prepared?

25 A. We basically used the document by Dr. Kessler is

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 what we did, and we were -- we were asked -- we were

2 tasked, actually, as interventional radiologists who were

3 academicians and involved with some of the writing

4 standards about IVC filters, and we were tasked to assess

5 the information that was provided by Bard about their

6 filters, and whether we thought that there was

7 transparency in that in our approach to, say, getting

8 consent for patients.

9 We were -- I lost my train of thought. Sorry.

10 MR. LOPEZ: If you need to refer to your report,

11 you can, by the way.

12 THE WITNESS: Yeah.

13 You know, as clinicians that have multiple years of

14 experience on IVC filters, we were, you know, able to make

15 opinions about, you know, what we thought was done. We

16 were able to assess the data that he presented, some of

17 the experimental data, that included lab experiments and

18 animal experiments.

19 Basically, it was listed as a permanent filter that

20 had -- that was supposed to act like permanent filters

21 that we had before.

22 My career and Anne Roberts' career spans the

23 transition in filters from permanent devices to retrieval

24 filters. And we were promised that the retrieval filters

25 would have the same sort of performance characteristics

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 that our permanent devices had. And unfortunately, as the

2 experience -- as the clinical experience accrued with the

3 retrieval filters, we were finding that that assumption

4 was not true, and there was -- it turned out, you know, I

5 had done a plenary session right before Bard did your

6 major marketing release of the Recovery Nitinol filter.

7 The -- The SIR meeting in 2004 was in Phoenix, and we

8 were -- my plenary session was on venous thromboembolism.

9 And we were all excited about having the use of retrieval

10 filters. Because we all remembered that ten-year-old kid

11 that had a trauma that we put a filter in, and he had that

12 filter for multiple decades, and we never felt real

13 comfortable talking to that patient or his mother or

14 father about what was going to happen with this multiple

15 decades. Really, you kind of say, "We don't really know,"

16 and that's an answer that families like to hear because

17 they -- they assume you are the doctor, you know

18 everything and, you know, you should know these things.

19 So again, I lost my train of thought. Sorry.

20 BY MR. BROWN:

21 Q. All right. Well, I'm interested right now in

22 how the report actually was physically prepared. Because

23 we have three authors and several hundred pages of

24 material here, and I want to get a sense as to how putting

25 pen to paper or fingers to the typewriter this was

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 A. This was three to four weeks.

2 Q. At the very back of the report there is an

3 Appendix A.

4 A. (Indicating.)

5 Yes.

6 Q. It's titled, "Facts and Data Considered."

7 Do you see that?

8 A. I do.

9 Q. Were you given the literature listed here?

10 A. Yes.

11 Q. There are a number of expert reports that are

12 listed. Were you given those expert reports as well?

13 A. Yes.

14 Q. Did you read the full reports?

15 A. I did.

16 Q. Of all of the expert reports that are listed

17 here?

18 A. I did.

19 Q. Then you were given internal Bard documents that

20 are listed here?

21 A. Yes.

22 Q. Did you read the full documents?

23 A. Not -- Well, not -- Maybe not all of them. But

24 if, for instance, sometimes on the reproduced copies I had

25 of -- of Kessler's, I couldn't necessarily read some of

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 the graphs, I would look then to make sure I was reading

2 those correctly. But this report was -- I felt so

3 comfortable with what he wrote, that I didn't read all of

4 those, no.

5 Q. You felt so comfortable with the report that

6 Dr. Kessler wrote?

7 A. Yes.

8 Q. The material that is listed in Appendix A, Facts

9 and Data Considered, this is the material that you believe

10 was on the Dropbox?

11 (Interruption in proceedings.)

12 MR. LOPEZ: Maybe it's a little more annoying

13 than I thought.

14 THE WITNESS: I'm sorry, Matthew.

15 BY MR. BROWN:

16 Q. Let me ask the question again.

17 The material that's listed in Appendix A, which is

18 titled, "Facts and Data Considered," is that the material

19 that you believe was provided to you via Dropbox?

20 A. Yes.

21 Q. How did you pick these documents from among all

22 the documents that were produced in the litigation or were

23 they just provided to you?

24 A. No. They were from the report, so I would find

25 a section that Kessler had written, and it would have,

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 say, a table or some specific quoted number that was

2 important to me in my argument, and I would say, "Well,

3 this refers to this document."

4 And so it was much like I wrote a medical article

5 when I'm quoting what the article says. You give it a

6 reference, and that's -- that's the way I used these.

7 Q. So am I correct that these are all documents

8 that you requested specifically?

9 A. I didn't specifically request them, but they

10 were in this -- in Kessler's report.

11 Q. Were some of the documents that are listed in

12 Appendix A, documents that you did not specifically

13 request?

14 A. It's possible. I suppose, I mean...

15 Q. Are you aware that over 1.5 million documents

16 have been produced in this litigation?

17 A. I'm not surprised.

18 Q. Is that the first time you've heard that figure?

19 A. I don't think it is, actually. I think I've

20 heard there's a large number.

21 Q. And there are 42 documents that are listed in

22 Appendix A?

23 A. Correct.

24 Q. So that's less than 0.0028 percent?

25 MR. JOHNSON: Form.

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 A. It is. It is.

2 Q. Did you do any searching or review of the

3 documents and transcripts in that database in forming your

4 report here?

5 A. Yeah. Yeah.

6 Q. How did you access it, the database?

7 A. It was on a Dropbox, so you just...

8 Q. I thought you mentioned that you had -- there

9 was a Dropbox folder that contained material; and then

10 within the past week or two, there was another database

11 that you were given access to.

12 A. Right.

13 Q. Is this referring -- this sentence referring to

14 that newer database that you were just given access to?

15 A. No, no, no. This is -- This report was from --

16 from February and March, so it was the original Dropbox.

17 Q. This is referring to the Dropbox?

18 A. Correct.

19 Q. Which contained the information listed in

20 Appendix A?

21 A. Correct.

22 Q. Okay. The new database that you have been given

23 access to, have you accessed it?

24 A. I have.

25 Q. When did you access it first?

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Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 A. Probably about -- Probably in the last, say, a

2 week ago.

3 Q. So about June 10th, 2017?

4 A. Right.

5 Q. Did you do any searching of materials that were

6 contained in that database?

7 A. I did, yeah.

8 Q. What did you search?

9 A. You know, like I said, if I had trouble reading

10 one of Kessler's things, and I was looking for something

11 to grasp or hard to read, I wanted to look and see, so I

12 would pull that document up.

13 Q. Okay. Other than pulling up individual

14 documents from Dr. Kessler's report that you wanted to

15 review, did you do any other searching of the material in

16 that database?

17 A. No. My -- My main focus was the Kessler report.

18 I guess in my report too.

19 Q. How did you access this database that you first

20 accessed about a week ago?

21 A. I'm not sure what you mean.

22 Q. Do you have -- Is it on the internet?

23 A. Yes. Yeah.

24 Q. Did you have to enter a user name and password

25 or something?

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