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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation, 

No. MDL 15-02641-PHX DGC 

ORDER 

This multidistrict litigation (“MDL”) involves thousands of personal injury 

cases related to inferior vena cava (“IVC”) filters manufactured and marketed by 

Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard”). 

Bard has filed motions to exclude the opinions of Drs. Thomas Kinney, Anne Christine 

Roberts, and Sanjeeva Kalva. Doc. 7296. The motion is fully briefed, and the Court 

heard arguments on December 15, 2017. The Court will grant the motion in part. 

I. Background.

 Each Plaintiff in this MDL received an implant of a Bard IVC filter and claims 

that the filter is defective and has caused serious injury or death. Plaintiffs allege that 

Bard filters tilt, perforate the IVC, or fracture and migrate to neighboring organs. 

Plaintiffs claim that Bard filters are more dangerous than other IVC filters, and that Bard 

failed to warn about the higher risks. Plaintiffs assert a host of state law claims, including 

manufacturing and design defects, failure to warn, breach of warranty, and consumer 

fraud and unfair trade practices. Doc. 303-1. Bard disputes Plaintiffs’ allegations, 
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contending that complication rates for Bard filters are comparable to those of other IVC 

filters, and that the medical community is aware of the risks associated with IVC filters. 

The parties intend to use various expert witnesses at trial, including medical 

professionals. The doctors subject to the present motion are interventional radiologists 

whom Plaintiffs have identified as expert witnesses on various issues in this MDL. 

Defendants ask the Court to exclude four categories of opinions from these experts: 

(1) their reliance on expert reports of other doctors in forming their opinions; (2) their 

“summaries and editorials” concerning deposition testimony and a small percentage of 

the internal Bard documents produced in the litigation; (3) opinions about the “reasonable 

expectations” of physicians and how a “reasonable physician” would act upon receiving 

certain information regarding Bard filters; and (4) opinions about IVC filter engineering 

and the suitability of Bard’s bench testing of its filters. Id. at 2-3. Plaintiffs oppose the 

motion. Doc. 7812. The Court will address each of Defendants’ arguments. 

II. Legal Standard.

 Under Rule 702, an expert may testify on the basis of “scientific, technical, or 

other specialized knowledge” if it “will assist the trier of fact to understand the 

evidence,” provided the testimony rests on “sufficient facts or data” and “reliable 

principles and methods,” and “the witness has reliably applied the principles and methods 

to the facts of the case.” Fed. R. Evid. 702(a)-(d). The proponent of expert testimony has 

the ultimate burden of showing, by a preponderance of the evidence, that the proposed 

testimony is admissible under Rule 702. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 

594, 598 (9th Cir. 1996). The trial court acts as a gatekeeper to assure that expert 

testimony “both rests on a reliable foundation and is relevant to the task at 

hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702’s 

requirements and the Court’s gatekeeping role apply to all expert testimony, not just 

scientific testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). 

/ / / 

/ / / 
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III. Discussion. 

A. Reliance on Other Expert Reports and Bard Documents. 

Without identifying any particular opinion or a specific portion of the doctors’ 

expert report (see Doc. 7301), Defendants ask the Court to preclude the doctors from 

providing any testimony that relies on the report of another expert or on internal Bard 

documents. Defendants assert that these are not sources of information on which doctors 

normally would rely as required by Federal Rule of Evidence 703. The Court is not 

persuaded. 

The rule for one expert’s reliance on another expert’s opinion has been well 

summarized by Judge Selna: 

[E]xpert opinions may find a basis in part on what a different expert 

believes on the basis of expert knowledge not possessed by the first expert. 

Indeed, this is common in technical fields. For example, a physician may 

rely for a diagnosis on an x-ray taken by a radiologist, even though the 

physician is not an expert in radiology. There is no general requirement 

that the underlying expert testify as well. There are limits to this general 

rule, however. Where the soundness of the underlying expert judgment is 

in issue, the testifying expert cannot merely act as a conduit for the 

underlying expert’s opinion. Moreover, more scrutiny will be given to an 

expert’s reliance on the information or analysis of another expert where the 

other expert opinions were developed for the purpose of litigation. 

In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. 

Liab. Litig., 978 F. Supp. 2d 1053, 1066 (C.D. Cal. 2013) (quotation marks, citation, and 

brackets omitted); see also E. Allen Reeves, Inc. v. Michael Graves & Assocs., Inc., 

No. 10-1393 (MAS), 2015 WL 105825, at *5 (D.N.J. Jan. 7, 2015) (“An expert . . . may 

rely on the opinion of another expert in formulating his or her opinion.”); Eaves v. United 

States, No. 4:07-CV-118-M, 2009 WL 3754176, at *9 (W.D. Ky. Nov. 5, 2009) (denying 

motion to preclude expert testimony because experts may rely upon the opinions of other 

experts); Weinstein’s Federal Evidence, § 703.04[3] (2017) (Rule 703 permits experts to 

rely on “[o]pinions of other experts”) (citing cases). Thus, the Court does not agree with 

Defendants’ assertion that some or all of the doctors’ opinions must be excluded because 
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they cite, refer to, or even rely on the opinions of other experts in this litigation. The 

doctors will not be permitted to parrot the opinions of other experts or to vouch for those 

experts, but they can rely on opinions stated by other experts. 

Nor can the Court conclude that the doctors’ opinions should be excluded or 

limited because they rely on internal Bard documents. Those documents are factual 

evidence in this case, and experts clearly are permitted to take factual evidence into 

account. Rule 702 requires that experts base their testimony on sufficient facts and apply 

their expertise “to the facts of the case.” Fed. R. Evid. 702(b), (d). Indeed, the first 

sentence of Rule 703 specifically states that “[a]n expert may base an opinion on facts or 

data in the case that the expert has been made aware of or personally observed.” The 

Court cannot accept Defendants’ suggestion that an expert cannot rely on a factual source 

unless the expert previously relied on that source in his or her medical practice. See 

Weinstein’s Federal Evidence § 703.04[3] (experts may rely on interviews, reports 

prepared by third parties, clinical and other studies, business, financial, and accounting 

records, and general knowledge or experience) (citing cases).1

The parties disagree on the extent to which the doctors reviewed the factual 

material on which they rely. Defendants contend that the doctors relied largely on 

Dr. Kessler’s summary of relevant documents and did not conduct their own independent 

review of Bard documents. Doc. 7296 at 6. Plaintiffs disagree, asserting that the doctors 

conducted a thorough evaluation of the documents supporting the opinions of the other 

experts. Doc. 7812 at 7-8. But even if the doctors did not review every relevant Bard 

document (Defendants do not identify any they overlooked) and relied to some extent on 

Dr. Kessler’s extensive chronology and summary, the Court cannot conclude that this 

renders their opinions inadmissible. Their opinions clearly are based on their expertise as 

interventional radiologists, the doctor’s testimony will be confined to their area of 

 

1

 In a footnote, Defendants ask that the doctors be precluded from using the schedules attached to their report during their testimony. Doc. 7296 at 5 n.1. The Court need not resolve this issue because Plaintiffs state that the doctors “will not refer to the 

schedules while testifying[.]” Doc. 7812 at 7 n.7. 
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expertise, and if Defendants believe the opinions are based on a slanted or inaccurate 

view of the facts, they certainly will be free to demonstrate that during cross examination. 

Nor is the Court persuaded by Defendants’ assertion that these experts cite less 

than 0.0028% of Bard’s internal documents. The actual percentage of a party’s 

documents relied on for trial is always exceedingly small, especially in these days of 

electronically stored information when the amount of available information greatly 

exceeds the amount of information that reasonably can be used in a trial. 

B. Summaries and Editorials.

 Defendants ask the Court to preclude the doctors from “quoting, summarizing, and 

offering editorials about deposition testimony and Bard’s internal documents,” asserting 

that such testimony would be unhelpful to the jury. Doc. 7296 at 7. Plaintiffs respond 

that the doctors “will not testify solely as ‘summarizers’ of documents. Instead, their 

proposed testimony about Bard’s internal documents will provide a contextual and 

factual foundation for their opinions as interventional radiologists[.]” Doc. 7812 at 11. 

 Line drawing in the context of such generalized arguments is not possible, and 

Defendants identify no specific testimony that the Court should exclude. Defendants do 

cite to a few paragraphs in the doctors’ 115-page expert report, but otherwise make no 

specific request regarding testimony to be excluded. 

 Experts on both sides of this case will be permitted to state opinions within their 

areas of expertise and to explain the factual, medical, technical, or scientific bases for 

those opinions. This testimony will be helpful to the jury and necessarily will require the 

experts to discuss some factual evidence. Experts will not be permitted to engage in 

lengthy factual narratives that are not necessary to the jury’s understanding of their 

opinions, nor will they be permitted to gratuitously comment on factual evidence or 

present what are essentially lawyer arguments with regard to factual testimony. Rules 

703 and 705 will apply to any expert’s explanation of opinions. In short, the Court will 

seek to strike the proper balance at trial between (a) allowing experts to reasonably 

explain their opinions in a manner helpful to the jury and (b) avoiding unnecessary 
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factual recitation or argument. More detailed rulings are not possible at this stage of the 

proceeding. See In re Actos Prods. Liab. Litig., No. 12-cv-00064, 2014 WL 120973, at 

*10 (W.D. La. Jan. 10, 2014) (“The objection that testimony is ‘narrative’ is an objection 

as to form, foundation, or responsiveness, and must be presented at trial.”); In re Yasmin 

& YAZ Prods. Liab. Litig., MDL No. 2100, 2011 WL 6302287, at *8 (S.D. Ill. Dec. 16, 

2011) (noting that issues concerning narrative testimony should be “decided at trial in 

context specific situations”). 

C. Opinions on Reasonable Expectations and Physicians.

Defendants ask the Court to exclude opinions as to what a physician reasonably 

expects to be told about the risks of IVC filters, or what a reasonable physician would do 

with certain adverse information about the devices. Doc. 7296 at 9-10; see Doc. 7301 

¶¶ 3, 7, 65-66, 73, 75-76, 182. Plaintiffs counter that the doctors are qualified to offer 

such opinions given their expertise in interventional radiology and use of IVC filters, and 

that the opinions have a reliable foundation. Doc. 7812 at 12-15. 

Defendants challenge these opinions because “they are not grounded in any 

reliable source of authority, 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.” Doc. 7296 at 2-3, 9. But 

these factors are neither exclusive nor dispositive in a Rule 702 inquiry, see Daubert, 509 

U.S. at 593-94, and “may not be pertinent in assessing reliability, depending on the nature 

of the issue, the expert’s particular expertise, and the subject of his testimony.” Primiano 

v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quoting White v. Ford Motor Co., 312 F.3d 

998, 1007 (9th Cir. 2002)). As the Supreme Court has explained, although some expert 

testimony “rests upon scientific foundations,” in other cases “the relevant reliability 

concerns may focus upon personal knowledge or experience. Daubert makes clear that 

the factors it mentions do not constitute a definitive checklist or test.” Kumho Tire, 526 

U.S. at 150 (citations omitted; emphasis in original). The Ninth Circuit likewise holds 

that “[t]he Daubert factors (peer review, publication, potential error rate, etc.) simply are 
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not applicable to [testimony] whose reliability depends heavily on the knowledge and 

experience of the expert, rather than the methodology or theory behind it.” United States 

v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000). 

This holds true for much medical testimony. As the Ninth Circuit has noted, 

medicine “is not a science but a learned profession, deeply rooted in a number of sciences 

and charged with the obligation to apply them for man’s benefit.” Primiano, 598 F.3d 

at 565 (quotation marks and citation omitted). “Despite the importance of evidencebased medicine, much of medical decision-making relies on judgment – a process that is 

difficult to quantify or even to assess qualitatively.” Id. (quotation marks and citation 

omitted). Thus, “a doctor’s experience might be good reason to admit his testimony.” Id. 

at 566 (citing Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 

(6th Cir. 2004); Schneider v. Fried, 320 F.3d 396, 406-07 (3d Cir. 2003)). 

Defendants do not dispute that the doctors are highly qualified experts in 

interventional radiology and the use of IVC filters. In Defendants’ own words, the 

doctors “are practicing interventional radiologists, members of radiological societies, 

reviewers for radiological journals, and authors of articles and presentations concerning 

the clinical use of IVC filters.” Doc. 7296 at 2. Under Rule 702 and Daubert, expert 

testimony “is reliable if the knowledge underlying it has a reliable basis in the knowledge 

and experience of the relevant discipline.” Primiano, 598 F.3d at 565 (citation omitted). 

The Court finds that the doctors’ knowledge and experience in the field of interventional 

radiology and the use of IVC filters in patients form a sufficient foundation for their 

opinions. 

In support of their argument that these experts cannot state opinions on what 

doctors “reasonably expect” to be told about the risks of IVC filters, or what a 

“reasonable physician” would do with certain adverse information about the devices, 

Defendants cite several cases. The Court is not persuaded, however, that the cases fully 

support Defendants’ position. 
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The court in In re Diet Drugs, No. MDL 1203, 2000 WL 876900 (E.D. Pa. June 

20, 2000), held that two doctors were not qualified to opine “about what all doctors 

generally consider in making prescription decisions.” Id. at *11. The basis for this 

conclusion is not entirely clear from the court’s decision, but it appears that the court was 

not comfortable with the scope of the opinion – what “all doctors” think. The court did 

not address whether the doctors could opine on what information a reasonable physician 

in a particular specialty might find important. 

In In re Diet Drugs, No. MDL 1203, 2001 WL 454586 (E.D. Pa. Feb. 1, 2001), the 

same judge, in the same proceeding, held that an FDA-expert physician was “not 

qualified to opine on what decisions would have been made by the numerous physicians 

who prescribed diet drugs had they been provided with different labeling information.” 

Id. at *18. The court explained: “Unlike opining about what physicians in general expect 

to see on a label, his surmising as to what physicians would do with different information 

is purely speculative and not based on scientific knowledge.” Id. The court thus 

appeared to recognize that an expert could testify about what physicians in general expect 

to see on a label – testimony very similar to Plaintiffs’ proposal that Drs. Kinney, 

Roberts, and Kalva testify about what interventional radiologists expect in medical 

product disclosures. 

The third case cited by Defendants, In re Rezulin Prods. Liab. Litig., 309 F. Supp. 

2d 531 (S.D.N.Y. 2004), relied on the Diet Drugs decisions to hold that a doctor could 

not testify that physicians would not have prescribed a particular drug if the manufacturer 

had made full disclosures. The court explained: “Unlike opining about what physicians 

in general expect to see on a label, his surmising as to what physicians would do with 

different information is purely speculative and not based on scientific knowledge.” Id. 

at 557. Again, the court recognized that the expert could testify about what physicians in 

general expect to see on a label. 

The Court cannot conclude from these cases that Drs. Kinney, Roberts, and Kalva 

should be precluded from testifying about disclosures that reasonable radiologists expect 
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to receive from manufacturers of IVC filters. Such testimony, if relevant, appears to be 

well within their expertise and experience, and the Court can identify no basis under Rule 

702 for precluding it. 

Whether the doctors should also be permitted to testify about what doctors would 

have done with additional information seems more problematic. Whether and when to 

use a particular product appears to be a more fact- and patient-specific decision, not 

amenable to broad generalizations. The propriety of testimony on this subject will 

depend heavily on the context and relevancy of the question. The Court will need to 

draw these lines during trial. 

D. Opinions on Engineering, Bench Testing, and Filter Performance.

Defendants note that the doctors render various opinions about filter engineering 

and the suitability of Bard’s testing procedures. Defendants argue that the doctors are not 

qualified to render such opinions. Doc. 7296 at 13. The Court agrees in part. 

Dr. Kinney received a master’s degree in mechanical engineering in 1979 and 

accepted a job with a physician designing angioplasty balloons, vascular clams, and a 

cardioplagia jacket for use during open heart surgery. In 1983, Dr. Kinney entered 

medical school and continued to work with the cardioplagia jackets as part of his 

independent study. Since graduating from medical school, Dr. Kinney has not done any 

medical device design work, and he has never designed bench top testing. Doc. 7296 

at 12 (citing record). Dr. Kinney has served as chair of data safety monitoring boards for 

clinical trials involving other IVC filters, and has published studies and review articles on 

IVC filters, including IVC design function. Doc. 7812 at 15-16 (citing record). 

Drs. Roberts and Kalva are clinical physicians with no background in engineering 

or actual bench testing of medical devices. The doctors have studied IVC filters and have 

seen filter failures in their medical practices. Dr. Kalva has published studies on the 

function, use, and complications of IVC filters, and is involved in developing an 

undisclosed patent for an IVC filter design. Id. 
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Defendants assert that the doctors are not qualified to opine on a number of 

matters in their export report. The Court’s task in ruling on this motion is complicated by 

the fact that Defendants cite specific paragraphs of the doctors’ report that include both 

mechanical and medical opinions, and Plaintiffs’ response does not address many of the 

paragraphs cited. For example, Defendants object to report paragraphs 115 (opining 

about how changing of the size of the diameter of the Bard filter impacted the radial force 

for the hook to engage the cava wall), 120 (opining about pressure gradient bench 

testing), 127 (opining about fatigue resistance testing), 133 and 167-68 (opining about 

finite element analysis of Bard’s filters), and 135-138 (opining about how fracture of 

filters can impact forces and loads on the filter). Doc. 7296 at 13. Plaintiffs’ response 

jumps over these paragraphs entirely, citing instead to paragraphs 59-77 and 141-182 of 

the report. Doc. 7812. As these ships pass in the night, the Court is left with little ability 

to reach specific conclusions. 

It appears clear, however, that the doctors are not qualified to testify on technical 

matters such as those set forth in their report at paragraphs 115 (engineering and design 

implications related to cephalad angulation of hooks), 120 (gradient thresholds, safety 

margins, and “[c]ommon safety factors used in engineering,”), 127 (evaluation of specific 

fatigue resistance testing), 133 (opinion that engineers used too low a deflection), and 

138 (opinion on improper balance struck in Recovery filter design). Doc. 7301. Drs. 

Roberts and Kalva have no training or experience on such matters, and Dr. Kinney’s 

training and experience in this field are more than 30 years old. See In re Ethicon Inc. 

Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2327, 2016 WL 4500765, at *5 (S.D. W. 

Va. Aug. 26, 2016) (“Dr. Rosenzweig is not qualified to opine that Ethicon’s testing was 

insufficient. There is no indication that Dr. Rosenzweig has any experience or 

knowledge on the appropriate testing a medical device manufacturer should undertake.”);

Morritt v. Stryker Corp., 973 F. Supp. 2d 177, 188 (E.D.N.Y. 2013) (physician’s opinions 

about manufacturing defects in knee replacement components went “well beyond the 
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‘reasonable confines’ of his clinical expertise” even though he had significant clinical 

experience with the device). 

Other somewhat technical opinions may be within the expertise of these doctors. 

They may be qualified, for example, to opine that filtering for blood clots is essentially a 

geometric issue, and that the loss of a filter arm or leg due to fracture results in larger 

gaps and places greater forces on the other arms and legs. Doc. 7301 ¶ 135. Or they may 

be qualified to explain that the changes to the Recovery filter are primarily dimensional, 

and opine as to what the changes suggest in terms of filter performance. Id. ¶ 156. Such 

opinions might reasonably be based on expertise and experience in implanting, 

monitoring, and removing IVC filters. 

The Court cannot be more precise at this point. Although the Court generally 

concludes that Drs. Kinney, Kalva, and Roberts are not experts in mechanical design and 

testing, more specific rulings will have to be made during trial. 

IT IS ORDERED that Defendants’ motion to exclude expert opinions 

(Doc. 7296) is granted in part and denied in part as set forth in this order. 

Dated this 22nd day of December, 2017.