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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 #6 

AND MEMORANDUM IN SUPPORT 

TO EXCLUDE ARGUMENT OR 

EVIDENCE REGARDING FAULT OF 

NON-PARTIES/“EMPTY CHAIR” 

DEFENSE AND “STANDARD OF 

CARE” OF PLAINTIFF’S 

HEALTHCARE PROVIDERS NOT 

SUBJECT TO NOTICE OF NONPARTY FAULT 

(The Honorable David G. Campbell) 

(Oral Argument Requested)

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION IN LIMINE TO 

EXCLUDE ARGUMENT OR EVIDENCE REGARDING FAULT OF NONPARTIES/“EMPTY CHAIR” DEFENSE AND “STANDARD OF CARE” OF 

PLAINTIFF’S HEALTHCARE PROVIDERS NOT SUBJECT TO NOTICE OF 

NON-PARTY FAULT 

Plaintiff moves in limine for an Order precluding evidence and argument (1) relating 

to fault or negligence of non-parties not subject to Defendants’ Notice of Non-Party Fault, 

and (2) the “standard of care” of Plaintiff’s healthcare providers not identified in 

Defendants’ Notice of Non-Party Fault. 

Case 2:15-md-02641-DGC Document 9871 Filed 01/26/18 Page 1 of 4
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MEMORANDUM OF LAW 

A. Fault Or Negligence of Non-Parties/“Empty Chair” Defense of 

Plaintiff’s Healthcare Providers Not Subject to Defendants’ Notice of 

Non-Party Fault. 

On November 13, 2017, Bard served a Notice of Non-Party Fault under O.C.G.A. 

§ 51-12-33, that it intends to claim Dr. Amer’s alleged acts and omissions are the sole 

proximate cause and/or contributing cause to Ms. Booker’s injuries.1

 Because Bard 

Notice of Non-Party Fault identifies only Dr. Amer as a non-party at fault,2

 under 

Georgia law all evidence and argument relating to the negligence or fault of any other 

non-parties is improper and prohibited by O.C.G.A. § 51-12-33. 

B. The “Standard of Care” of Plaintiff’s Healthcare Providers Not 

Identified In Defendants’ Notice of Non-Party Fault. 

Any evidence or testimony regarding the “standard of care” of Plaintiff’s healthcare 

providers is inappropriate, irrelevant, and improper under Georgia law, and would be 

unfairly prejudicial to Plaintiff. Fed. R. Evid. 402, 403. Because the notice only refers to 

Dr. Amer’s alleged acts or omissions, Bard should be prohibited from eliciting testimony 

that Plaintiff’s other healthcare providers treatment fell below the “standard of care.” 

Even if subsequent negligence arguably caused or contributed to additional harm 

sustained by Plaintiff, it would be legally inappropriate and highly prejudicial for Bard to 

claim, argue or otherwise suggest of a non-party healthcare provider without first timely 

complying with Notice of Non-Party Fault requirement. See O.C.G.A. § 51-12-33. Any 

argument, evidence, testimony, or suggestion regarding the fault of any healthcare 

providers in this action is not only irrelevant, but is also highly prejudicial and creates a 

substantial risk of misleading the jury, especially since Bard has failed to comply with 

Georgia’s statutory notice requirement. 

 

1 See Exhibit A, Defendants’ Notice of Non-Party Fault (Doc. 8844), November 13, 2017. 

2

 Plaintiff has simultaneously filed a separate motion in limine addressing the Notice of 

Non-Party Fault filed regarding Dr. Amer and why evidence alleging he is a non-party 

fault should be excluded at trial. 

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Bard has not disclosed a retained or non-retained expert witness to establish nonparty healthcare provider fault and therefore, cannot prove either a failure to comply with 

the applicable standard of care or causation. Setting Georgia law aside, pursuant to Fed. R. 

Civ. P. 26(a)(2)(B), Bard is required to disclose the identity of experts and a report or 

appropriate disclosure of the testimony. Specifically, when parties identify experts who 

are not retained, such as treating physicians, a party must state the “subject matter” on 

which the witness is expected to testify with a “summary of the facts and opinions”. See

Fed. R. Civ. P. 26(a)(2)(C). Here, Bard has not followed the requisite disclosure 

necessary for a witness, expert or otherwise, to support a claim of non-party healthcare 

provider fault. 

Accordingly, Plaintiff respectfully requests that this Court enter an Order granting 

this motion and prohibiting at trial all evidence and argument relating to fault or 

negligence of non-parties not identified in Defendants’ Notice of Non-Party Fault filed on 

November 13, 2017. 

RESPECTFULLY SUBMITED 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 

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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 9871 Filed 01/26/18 Page 4 of 4