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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

SHERR-UNA BOOKER, an individual, 

Plaintiff, 

v. 

C.R. BARD, INC., a New Jersey 

corporation and BARD PERIPHERAL 

VASCULAR, an Arizona corporation, 

Defendants. 

PLAINTIFF’S MOTION IN LIMINE #4 

AND MEMORANDUM IN SUPPORT 

TO EXCLUDE EVIDENCE THAT IVC 

FILTERS ARE THE GOLD 

STANDARD OR STANDARD OF 

CARE TREATMENT 

(The Honorable David G. Campbell) 

(Oral Argument Requested) 

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION IN LIMINE TO 

EXCLUDE EVIDENCE THAT IVC FILTERS ARE THE GOLD STANDARD OR 

STANDARD OF CARE TREATMENT 

Plaintiff moves in limine for an Order precluding evidence and argument relating to 

any alleged reference to IVC filters as the gold standard treatment or standard of care for 

the treatment of pulmonary embolisms and/or deep vein thrombosis. 

MEMORANDUM OF LAW 

 Plaintiff’s claims involve Bard’s G2 IVC blood filter. Based on prior witness 

questioning, Plaintiff anticipates that Bard may seek to introduce testimony or evidence 

that IVC filters are the “standard of care” or the “gold standard” for the treatment of 

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pulmonary embolisms (PE) or deep vein thrombosis (DVT), especially if the patient 

cannot be treated with anticoagulation medication. The relevant issues are whether Bard’s 

design of the G2 filter was defective and whether Bard failed to provide adequate 

warnings regarding the risks and complications of the G2 filter. Even if IVC filters 

generally are the “gold standard” or “standard of care” for treatment with PE or DVT that 

alleged fact does not make it more or less likely that Bard designed the G2 filter properly 

or that its warnings were adequate. 

 Plaintiff further anticipates Bard will attempt to use these statements or testimony 

to unfairly prejudice Plaintiff and her experts who disagree with the use of those terms or 

the appropriate indications for IVC filters, generally. Plaintiff will be forced to respond, 

creating a mini-trial over an issue that is entirely irrelevant and highly prejudicial to the 

issues the jury must resolve. Fed. R. Evid. 402, 403. Additionally, to permit such 

testimony would: (1) allow Bard to supplant the legal standard of care with its own 

manufactured narrative of the “standard of care”; (2) place greater weight on the 

effectiveness of IVC filters, including Bard products, compared to other proven 

alternative medications, products or procedures; and (3) result in undue delay, confusion, 

and prejudice without adding probative value. Fed. R. Evid. 403. For these reasons, any 

of Bard’s “gold standard” or “standard of care” evidence relating to the use of IVC filters 

should be excluded. 

 First, admission of such unsupported testimony would enable Bard to supplant its 

own “standard of care” for the applicable legal standard without the scrutiny of a Daubert

analysis which is otherwise required for the admissibility of scientific evidence on the 

standard of care. This testimony or argument will confuse the jury and will undermine 

the Court’s responsibility to determine the applicable law and charges to the jury. 

Admission of such evidence creates a substantial risk that jurors will confuse Bard’s 

assertion that its products represent a “gold standard” or “standard of care,” with the 

actual legal standard of care which Bard was obligated to follow in regard to its products. 

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Such evidence will allow jury to make impermissible and unsupported legal conclusions 

based on an ambiguous and factually deficient terms touted by Bard to describe its filters. 

 In addition, Bard’s “gold standard” narrative would result in greater weight being 

unduly accorded to the use and effectiveness of its IVC filters. If jurors hear that 

products like the G2 Filter are similar to a “gold standard,” they are likely to improperly 

place a greater weight upon the product’s use and effectiveness. Such a term suggests that 

no alternative products or procedures existed to treat Ms. Booker’s condition or potential 

condition, or that if there were alternatives that Bard’s IVC filters were the safer and 

more effective choice. Such insinuations are incorrect and misleading. 

 Further, admission of such testimony will inevitably lead to a “trial within a trial” 

to address and rebut issues including: the definition of “gold standard” as it relates to 

treatment for PE, DVT, and other conditions; whether all IVC filters are entitled to have 

that designation; which brands or manufacturers’ products constitute the “gold standard”; 

when did Bard’s filters became the “gold standard”, if they did at all; and whether Bard 

or some other company’s branding of its filters, as opposed to clinical experience, 

resulted in the product’s designation as the “gold standard’ treatment for PE, DVT, and 

other diagnoses. These “mini-trials” would be particularly wasteful, confusing to the jury, 

and prejudicial to the Plaintiff. Wilson v. Maricopa County, 2007 WL 686726, at *12-13 

(D. Ariz. Mar. 2, 2007) (finding that evidence that creates mini-trials leads to 

unnecessarily lengthy trials for parties and jury and is precluded under Fed. Rule Evid. 

403). Considering the time limits assigned to Ms. Booker’s trial, it would be especially 

unfair for Plaintiff to have to combat such assertions with the clock running. In addition, 

the prejudicial impact of Bard’s “gold standard” argument would be high, given the 

possibility that the jury would simply assume that the G2 Filter constituted the best 

treatment available for Ms. Booker’s condition. 

 At the same time, as discussed above, evidence that IVC filters constitute the 

“gold standard” or “standard of care” has little to no probative value; it has nothing to do 

with whether the design of Bard’s G2 filter was defective or its warnings were adequate 

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and also as evidenced by the ambiguous nature of the term. Thus, the prejudicial impact 

far outweighs any probative value. 

 Based upon the foregoing, Plaintiff respectfully requests that Defendant be 

precluded from introducing evidence or arguing that IVC filters are the “gold standard” 

or the “standard of care” for treatment of patients. 

RESPECTFULLY SUBMITTED this 26th day of January, 2018. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Mark S. O’Connor 

Mark S. O’Connor 

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 26th day of January, 2018, 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/ Gay Mennuti 

Case 2:15-md-02641-DGC Document 9869 Filed 01/26/18 Page 4 of 4