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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 #13 

AND MEMORANDUM IN SUPPORT 

TO EXCLUDE REFERENCE TO 

ALLEGED FAULT OF NON-PARTY 

SARWAT KAMAL AMER, M.D. 

(The Honorable David G. Campbell) 

(Oral Argument Requested) 

MEMORANDUM SUPPORT OF PLAINTIFF’S MOTION IN LIMINE TO 

EXCLUDE REFERENCE TO ALLEGED FAULT OF NON-PARTY SARWAT 

KAMAL AMER, M.D. 

Plaintiff moves in limine for a pretrial ruling to preclude Defendants (“Bard”) from 

presenting evidence or argument regarding the alleged fault of Sarwat Kamal Amer, M.D., 

in the causation of Plaintiff’s injuries. Although Bard filed a Notice of Non-Party Fault1

identifying Dr. Amer’s alleged acts or omissions as the sole proximate cause and/or 

contributing cause to Ms. Booker’s injuries, Bard has not disclosed expert testimony 

 

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

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supporting proximate cause for consideration by a jury as required by Georgia law. 

Zaldivar v. Prickett, 297 Ga. 589, 591, 774 S.E. 2d 688, 691 (2015) 

MEMORANDUM OF LAW 

 Under O.C.G.A. § 51-12-33(c), the jury “shall consider the fault of all persons or 

entities who contributed to the alleged injury or damages, regardless of whether the person 

or entity was, or could have been, named as a party to the suit.” The jury may only 

consider such alternative fault if a named defendant gives notice no later than 120 days 

before the date of trial and sets forth specific information about the non-party including a 

statement of the basis for arguing the non-party is at fault. O.C.G.A. 51-12-33(d)(1-2). 

On November 13, 2017, Bard served a Notice of Non-Party Fault claiming alleged acts or 

omissions of Dr. Amer, a radiologist involved in Ms. Booker’s care, were the sole 

proximate cause or a contributing cause of Ms. Booker’s injuries: 

Dr. Amer was the diagnostic radiologist who read Plaintiff’s [xray] on March 26, 2009 which showed her G2 Filter had 

fractured . . . Dr. Amer failed to properly report the condition of 

Plaintiff’s filter to her treating physicians and therefore 

prohibited her treating physicians from fully evaluating her 

medical condition and options for treatment. This failure 

constituted the sole proximate cause and/or contributing cause to 

Plaintiff’s injuries. 

See Exhibit A. 

 However, Bard has not identified an expert or evidence showing that the alleged 

non-party’s fault caused or contributed to Plaintiff’s injuries. Under Georgia law, to argue 

the fault of a non-party such as Dr. Amer, Bard must show that (1) Dr. Amer committed a 

tort (medical malpractice), and (2) the tort was a proximate cause of Ms. Booker’s 

injuries. Zaldivar, 297 Ga. at 591, 774 S.E. 2d at 691 (stating that a trier of fact can only 

consider the alleged fault of a non-party when the “the non-party is shown to have 

committed a tort against the plaintiff that was a proximate cause of his injury.”); Swint v. 

Mae, 340 Ga. App. 480, 482, 798 S.E. 2d 23, 25 (Ga. Ct. App. 2017) (citation omitted). 

“A mere showing of negligence without proof of causation” is not sufficient. Id. 

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Moreover, causation can only be established though expert testimony, which Bard has not 

supplied. Id. 

 Bard’s attempt to apportion fault to Dr. Amer fails. Bard has offered no expert 

opinion establishing that Dr. Amer’s review of Ms. Booker’s x-ray on March 26, 2009 or 

establishing that failure to report the condition to Ms. Booker’s treating physicians was 

the proximate cause or contributed to the injuries Ms. Booker is claiming in this matter. 

 “When presenting a causation opinion, the expert is required to ‘express some basis 

for both the confidence with which his conclusion is formed, and the probability that his 

conclusion is accurate.’” Zwiren v. Thompson, 276 Ga. 498, 501, 578 S.E. 2d 862, 865 

(Ga. 2003) (citation omitted). An expert may also meet the causation requirement by 

stating that “the only apparent cause of the plaintiff's injury was the defendant's action.” 

Killingsworth v. Poon, 167 Ga.App. 653, 657, 307 S.E. 2d 123, 126 (Ga. Ct. App. 1983). 

In other words, a defendant cannot blame a non-party healthcare provider for allegedly 

injuring a plaintiff without proof that the alleged negligence was a cause or contributed to 

the harm. Bard has conspicuously failed to meet this burden. 

 Bard has produced two expert witnesses who comment on the x-rays Dr. Amer 

reviewed: Dr. Sobieszczyk and Dr. Cousin. Neither physician has testified or otherwise 

disclosed in their reports any opinion establishing the necessary causal link between 

Dr. Amer’s alleged failure to report any finding of filter failure on the March 26, 2009 xray and how a report would affect an ordering physician. In fact, Dr. Sobieszczyk 

admitted in his deposition he was not asked to provide an opinion as to the standard of 

care applicable of any of Ms. Booker’s physicians who may have received the imaging 

report. Dr. Sobieszcyk also admitted that his opinions did not address any criticism of 

Dr. Amer. See Exhibit B, Deposition Testimony of Piotr Sobieszczyk, M.D., at 45:6–

46:18. 

Bard may attempt to argue that opinions of defense expert Dr. Cousin establish 

causation on its non-party defense. Here again Bard is wrong. According to his report, 

Daniel Cousin, M.D., holds the opinion that by “failing to identify and report the 

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abnormal appearance of the inferior vena cava filter, the diagnostic radiologists 

[Dr. Amer] prevented Ms. Booker’s treating physicians from having information to assess 

her medical condition pertaining to her IVC filter.” Exhibit C, Expert Report of Daniel 

Cousin, M.D., at 5-6. He also testified that Dr. Amer’s review of Ms. Booker’s x-ray on 

March 26, 2009 was a “missed opportunity.” Exhibit D, Deposition Testimony of Daniel 

Cousin, M.D., at 135:16-19. 

But neither his report nor his testimony include any opinion as to how an alleged 

“missed opportunity” contributed to the cause of Ms. Booker’s injuries or even what the 

standard of care applicable to the physician who ordered the imaging might require. 

Dr. Cousin does not explain, let alone offer an opinion, that an interpretation of filter 

malposition would have led to an attempted removal, that such removal would have been 

successful, or even how a different report to Ms. Booker’s other physicians might have 

changed the course of her treatment. Indeed, any such opinions would be improperly 

based on sheer speculation and, therefore, inadmissible. 

 Accordingly, the Court should enter an Order granting this motion and ruling that 

Bard has not established a non-party at fault defense under Georgia law as to Dr. Amer, 

and thus Bard cannot make any such argument or introduce any evidence or testimony 

that Dr. Amer bears any fault for Plaintiff’s harm. 

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 

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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 

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