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Ramon Rossi Lopez - rlopez@lopezmchugh.com

(California Bar Number 86361; admitted pro hac vice)

Lopez McHugh LLP

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

949-812-5771

Mark S. O’Connor (011029) – mark.oconnor@gknet.com

Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

602-530-8000

Co-Lead/Liaison Counsel for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

In Re Bard IVC Filters Products 

Liability Litigation

No. MD-15-02641-PHX-DGC

SURREPLY IN OPPOSITION TO 

DEFENDANTS’ MOTION TO 

DISQUALIFY THOMAS KINNEY, M.D. 

AS AN EXPERT FOR PLAINTIFFS

Plaintiffs provide this surreply in support of their opposition to Defendants’ Motion 

to Disqualify Thomas Kinney, M.D. as an Expert for Plaintiffs (“Motion,” Doc. 5677)

and, specifically, to supplement the record as a result of Dr. Kinney’s deposition that was 

taken after completion of the briefing on Defendants’ Motion.

Bard took the deposition of Dr. Kinney in this matter on June 17, 2017, 

approximately one month after briefing was complete on its Motion to disqualify him. In 

the Motion, Bard contends that Dr. Kinney was its consultant to whom it provided 

protected, confidential information. In opposition to that Motion, Dr. Kinney provided a 

sworn declaration in which he attested that he had not been retained by Bard for any 

purposes related to this litigation and that had not received any information from Bard that 

related to the mental impressions of its counsel, legal theories, liability theories, or 

relating at all to the subject matter of his report in this litigation.

Despite its claims in the Motion and Dr. Kinney’s sworn declaration refuting them, 

Bard failed to examine Dr. Kinney at his deposition regarding those subjects or to produce 

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any evidence that Dr. Kinney received from Bard any protected information that should 

result in his disqualification in this MDL. To the contrary, despite the elephant in the 

room, Bard did not examine Dr. Kinney at all regarding what work he did for Bard as a 

consultant or the information or types of information he received from Bard in that role. 

Nor did it mark his declaration as an exhibit or ask him any questions about it.

Plaintiffs, on the other hand, examined Dr. Kinney regarding his work for Bard,

and that testimony provided further evidence that he was not, as Bard contends, a 

litigation consultant with access to confidential information or attorney mental 

impressions related to this litigation. Plaintiffs have attached the relevant excerpts of Dr. 

Kinney’s deposition testimony as Exhibit A to this Surreply. In relevant part, he testified 

that his primary contact at Bard was Janet Hudnall but that he did speak to Richard North, 

Rob Carr, and Dr. Ciavarella. Other than Richard North, all of these individuals are 

corporate, non-legal employees of Bard. Further, he expressly disclaimed any contact 

with Richard North relating to the lawsuits on which he had been retained. See id. at 

312:3-6. Rather, Mr. North “contacted [him] about having the phone conversations with 

helping physicians” having problems with filters. Id. at 312:8-19. In that role, Dr. Kinney

was “asked to give advice about particular [medical] cases. Usually it was about 

retrievals, difficult retrievals.” Id. at 313:11-13. He considered himself to be a 

“consultant giving a second opinion to a physician having a problem with a filter.” Id. at 

313:18-21. And, he would prepare progress notes for those calls of the advice that he 

gave to the physician. Id. at 313:22-314:5

In his errata, Dr. Kinney noted that, while Richard North set up his arrangement to 

help physicians and Bard support staff with problem clinical cases, Mr. North did not 

participate in the individual calls. Bard personnel would put Dr. Kinney in contact with 

the specific clinician involved with the problem case. See Declaration, attached as Exhibit 

B.

Dr. Kinney also produced at his deposition the one and only “report” he did for 

Bard regarding the case in which he is alleged to have been a consulting expert (Mattes 

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versus Bard). Plaintiffs have not reviewed that report; Plaintiffs understand that it has 

been filed in camera. Plaintiffs advised counsel for Bard that Dr. Kinney was prepared to 

testify about the circumstances of his involvement and the purpose of his report. Bard, 

however, chose not to examine him on those issues or anything relating to the report. See 

id. at 61:8-62:15.

In sum, Dr. Kinney’s deposition testimony only further supports his declaration in 

opposition to Bard’s Motion. For the reasons set forth in Plaintiffs’ Opposition, Bard’s 

continued failure to adduce any evidence that it provided Dr. Kinney with protected 

information relevant to the subject matter of his report or this litigation is fatal to its 

Motion.

RESPECTFULLY SUBMITTED this 12th day of July 2017.

GALLAGHER & KENNEDY, P.A.

By:/s/ Paul L. Stoller

Mark S. O’Connor

Paul L. Stoller

2575 East Camelback Road

Phoenix, Arizona 85016-9225

LOPEZ McHUGH LLP

Ramon Rossi Lopez (CA Bar No. 86361)

(admitted pro hac vice)

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

Co-Lead/Liaison Counsel for Plaintiffs 

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of July, 2017, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing.

/s/ Deborah Yanazzo

6090025/26997-1

Case 2:15-md-02641-DGC Document 9430 Filed 12/21/17 Page 3 of 15
EXHIBIT A 

Case 2:15-md-02641-DGC Document 9430 Filed 12/21/17 Page 4 of 15
Thomas Kinney , M.D. June 17, 2017

In Re: Bard IVC Filters Products Liability

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ARIZONA

3

4

5 IN RE BARD IVC FILTERS

6 PRODUCTS LIABILITY MD-15-02641-PHX-DGC

7 LITIGATION

8

9

10

11

12 VIDEOTAPED DEPOSITION OF THOMAS KINNEY, M.D.

13 La Jolla, California

14 Saturday, June 17, 2017

15 Volume I

16

17

18

19

20

21

22 Reported by:

23 Gail E. Kennamer, CSR 4583, CCRR

24

25

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In Re: Bard IVC Filters Products Liability

1 that to us. I think that was given in camera to the

2 judge, but I told him to bring anything he had on that

3 case, and that's what he brought, so I just --

4 MR. BROWN: Okay.

5 MR. LOPEZ: I don't know how you guys are

6 handling that, to be honest with you, but --

7 MR. BROWN: All right.

8 MR. LOPEZ: -- he has it.

9 BY MR. BROWN:

10 Q. All right. So Dr. Kinney brought with him a

11 document entitled, "Mattes versus Bard. Comments by

12 Dr. Thomas B. Kinney, M.D." and it's a three-and-a-half

13 page, single-spaced document.

14 MR. LOPEZ: I guess the point is you claimed

15 privilege I think to that before.

16 MR. BROWN: So am I correct that you --

17 plaintiffs have not seen this document?

18 MR. JOHNSON: We have not reviewed it or seen

19 it.

20 BY MR. BROWN:

21 Q. Okay. Doctor --

22 MR. LOPEZ: We were advised he had it. We told

23 him because of your objection, we were not allowed to

24 review it or discuss it with him.

25 BY MR. BROWN:

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In Re: Bard IVC Filters Products Liability

1 Q. Doctor, have you provided this document that I

2 just described, Mattes versus Bard, to any counsel for the

3 plaintiff?

4 A. I provided that to Laura.

5 Q. Who is Laura?

6 A. I don't remember her last name. Sorry.

7 Q. Do you remember what law firm she works for?

8 A. No. Sorry, Matthew, I don't.

9 MR. LOPEZ: I can tell you. He did provide it,

10 but we -- I have talked to Laura about this. She was

11 instructed not to review it.

12 MR. BROWN: Okay.

13 MR. LOPEZ: In other words, we didn't -- we

14 didn't reference it in our opposition to the DQ motion.

15 Its content is still protected.

16 MR. BROWN: I'm going to go ahead and mark as

17 Exhibit 5 --

18 MR. LOPEZ: Just so there is no

19 misunderstanding, we do not agree it should be a protected

20 document. It's just that we are honoring the fact that

21 you guys have done that.

22 MR. BROWN: Okay.

23 MR. LOPEZ: We think it's clearly a document

24 that's been put at issue. Any claim by you all that it

25 somehow is privileged is ludicrous. Best word I can think

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In Re: Bard IVC Filters Products Liability

1 MR. JOHNSON: Form objection. Question is also

2 vague.

3 THE WITNESS: It's a suggestion, but there's --

4 I don't see them giving a lot of details about how they

5 are doing that. It's -- It's a one-sentence structure

6 with no specifics.

7 We kind of talked about that, you know, like we

8 talked about whether there is, I don't know, prospective

9 randomized studies, the grades of those versus case

10 studies. There is no mention about how that's done here.

11 I guess we're making assumptions.

12 MR. BROWN: Okay. Thank you, Doctor. I don't

13 have any other questions for you.

14 THE WITNESS: Thank you, I think.

15 MR. JOHNSON: I will have some questions for

16 him. I won't be too long.

17

18 -EXAMINATION19 BY MR. JOHNSON:

20 Q. Doctor, did I understand you to tell us that for

21 a number of years, Bard had you act in different

22 capacities on their behalf?

23 A. I did many different things for Bard. I did --

24 I trained physicians on how to put filters in and take

25 them out.

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In Re: Bard IVC Filters Products Liability

1 I did animal studies to evaluate new designs.

2 I participated in the patent lawsuit that had to do

3 with dialysis catheters.

4 And then I did phone conversations with them, in

5 contact with their clinical support staff or sales

6 personally about particular problems.

7 Q. All right. And you did that for a number of

8 years?

9 A. From about 2004 to about 2007 is what I recall.

10 Q. Who were your primary contact people with Bard?

11 You mentioned Janet Hudnall, for example.

12 A. Hudnall was one of my major contacts. But I do

13 remember talking to Richard North, I think. He was the

14 guy -- he was the person that contacted me about the phone

15 conversations, if I remember right.

16 It could have been Dr. Civarella. I don't remember.

17 It's quite a while ago now.

18 Q. And did you mention Rob Carr?

19 A. You know, Rob Carr was always in the background,

20 but he -- I didn't -- he didn't solicit me directly. I

21 remember Janet, and I remember either Richard North or

22 Civarella.

23 Q. Richard North?

24 A. I think so. Why?

25 Q. He's an attorney for Bard, defending them in

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In Re: Bard IVC Filters Products Liability

1 this litigation?

2 A. Correct.

3 Q. Right. All right. And was your contact with

4 Richard North relating to one of those cases identified on

5 your case list?

6 A. It was not.

7 Q. Okay.

8 A. That was -- As I recall, he contacted me about

9 the phone conversations with helping physicians --

10 Q. All right.

11 A. -- is what I recall.

12 Q. Okay. So the context with respect to that

13 contact would have been he or somebody acting as an

14 intermediary where you would be asked to speak with

15 another physician who is having a problem with a filter?

16 A. Correct.

17 Q. And you would troubleshoot that issue with that

18 physician?

19 A. Correct.

20 Q. Would you prepare a report regarding your

21 interaction with that other physician?

22 A. Yes. Generally, as what I recall Richard North

23 asking me to do is --

24 MR. BROWN: Hang on one second.

25 Were you a retained consultant for Bard at the time

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In Re: Bard IVC Filters Products Liability

1 that you were contacting Richard North?

2 THE WITNESS: I believe I might have been

3 because I --

4 MR. JOHNSON: Let me rephrase the question.

5 Q. I don't want to know what Richard North told

6 you. I want to know what your interaction was with a

7 third-party physician who was having a problem with a

8 filter.

9 A. What was my --

10 Q. Involvement with that physician.

11 A. I was asked to give advice about particular

12 cases. Usually it was about retrievals, difficult

13 retrievals.

14 Q. All right. But the communications and the

15 advice that you gave would have been with that physician

16 who was treating a patient?

17 A. Correct.

18 Q. And did you consider yourself to be a -- a

19 consultant giving a second opinion to a physician having a

20 problem with a filter?

21 A. I would say yes.

22 Q. And would you prepare what amounts to a progress

23 note of your advice that you gave to that physician?

24 A. I did. Yeah.

25 Q. Much the same as a progress note that you would

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In Re: Bard IVC Filters Products Liability

1 make if one of your colleagues at one of your hospitals

2 asked you for your advice relating to a problem with a

3 filter?

4 MR. BROWN: Object to the form.

5 THE WITNESS: Correct.

6 BY MR. JOHNSON:

7 Q. All right. Were you also a trainer for Bard,

8 that is, did you train other physicians on how to implant

9 the filter and explant filters?

10 A. Yes.

11 Q. All right. With regard to the report that you

12 prepared for this litigation, does it set forth your

13 opinions within a reasonable degree of medical

14 probability?

15 A. Yes.

16 Q. All right. And you told us that you were first

17 retained in this litigation in December of 2016 or January

18 of 2017?

19 A. I -- I kind of recall January, but I could be

20 wrong about that.

21 Q. There is a list in your report of Bard

22 documents. Do you recall that?

23 A. Yes.

24 Q. And do you recall reviewing all of those

25 documents?

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EXHIBIT B 

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