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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

James R. Condo (#005867)

Amanda C. Sheridan (#027360)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren, Suite 1900

Phoenix, AZ 85004-2204

Telephone: (602) 382-6000

jcondo@swlaw.com

asheridan@swlaw.com

Richard B. North, Jr. (admitted pro hac vice)

Georgia Bar No. 545599

Matthew B. Lerner (admitted pro hac vice)

Georgia Bar No. 446986

NELSON MULLINS RILEY & SCARBOROUGH LLP

Atlantic Station

201 17th Street, NW, Suite 1700

Atlanta, GA 30363

Telephone: (404) 322-6000

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com

Attorneys for Defendants

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: Bard IVC Filters Products Liability 

Litigation,

No. 2:15-MD-02641-DGC

DEFENDANTS’ MOTION AND 

MEMORANDUM IN SUPPORT OF 

MOTION IN LIMINE NO. 5 TO 

EXCLUDE FACT EVIDENCE 

FROM PLAINTIFFS’ EXPERT, DR. 

THOMAS KINNEY, REGARDING 

HIS WORK FOR BARD AS AN IVC 

FILTER CONSULTANT AND 

EXPERT WITNESS

(Assigned to the Honorable David G. 

Campbell)

Case 2:15-md-02641-DGC Document 9868 Filed 01/26/18 Page 1 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Bard moves in limine to exclude irrelevant, unfairly prejudicial, and potentially 

misleading factual evidence that Plaintiffs’ expert witness, Dr. Thomas Kinney, was an 

expert witness for Bard in two prior IVC filter cases and a paid consultant to Bard 

pertaining to the design, testing, and use of its IVC filters (hereinafter “Bard IVC Filter 

Work”).1 Bard respectfully shows the Court as follows:

ARGUMENT AND CITATION OF AUTHORITY

A. Evidence That Dr. Kinney Was Bard’s Expert Witness and Consultant is 

Irrelevant and Inadmissible Because Plaintiffs Aver that Dr. Kinney’s Bard 

IVC Filter Work is Wholly Unrelated to His Expert Opinions in the MDL

Dr. Kinney is a medical doctor and engineer who Plaintiffs retained as an expert 

witness “to opine about alleged design defects in Bard’s filters and Bard’s alleged failure 

to warn physicians who implant them.” Doc. 9428 at 2. Bard moved to disqualify Dr. 

Kinney based on his prior work for Bard as a litigation expert and paid consultant, which 

the Court denied. See Docs. 5677, 9428. Bard’s present motion is based in part on 

Plaintiffs’ and Dr. Kinney’s representations to Bard and the Court during briefing on

Bard’s motion to disqualify Dr. Kinney. See Docs. 5803, 5803-1.

In their opposition to Bard’s motion to disqualify Dr. Kinney, Plaintiffs stated that 

Dr. Kinney’s expert opinions in the MDL are not based on his experiences as Bard’s 

litigation expert or paid consultant, nor are such opinions based on knowledge acquired 

during that work. See Doc. 5803. Plaintiffs plainly stated that “[n]one of [Dr. Kinney’s 

consulting] work related to the issues discussed, subject matter, or bases of the opinions 

rendered in [Dr. Kinney’s] report in this MDL.” Id. at 6, n.2. Dr. Kinney testified that his 

expert work and opinions in the MDL are not based on documents, data, or information

he derived or received while he consulted for Bard. See Doc. 5803-1 at ¶¶ 29-34. Going 

even further, Plaintiffs declared that Dr. Kinney’s confidential consulting relationship 

with Bard from 2005 to 2008 “has absolutely nothing to do with the issues and causes of 

action in this MDL.” See Doc. 5803 at 9. 

Similarly, with respect to his prior work as Bard’s expert witness, Plaintiffs averred 

 

1 Counsel for Defendants conferred with counsel for Plaintiffs and this motion is opposed.

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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

that such work did not “remotely relate[] to the issues and subject matter of Dr. Kinney’s 

expert report in this MDL.” Id. at 3. Plaintiffs stated that Dr. Kinney’s prior expert work 

was strictly limited to reviewing plaintiff-specific medical records “that have no bearing 

whatsoever on the broad, more far reaching opinions he offers in the MDL.” Id. at 8. 

Plaintiffs further averred that while serving as Bard’s expert witness, Dr. Kinney was not 

privy to Bard’s internal documents that he now relies on to form his opinions in this 

MDL. Id. at 7. Nor was Dr. Kinney informed of Bard’s legal ideas, theories of liability, 

or strategy, as stated by Plaintiffs. Id. at 8.

Plaintiffs and Dr. Kinney’s representations to the Court make it apparent that Dr. 

Kinney’s expert opinions in this MDL are 100 percent removed from his work as Bard’s 

expert witness and consultant. Accordingly, the fact that Dr. Kinney was Bard’s expert 

witness and consultant is not relevant and inadmissible because that work is neither a part 

of Dr. Kinney’s Rule 702 expert opinions, nor is it a basis for those opinions under Rule 

703. By Plaintiffs’ own admissions, disclosing the facts of Dr. Kinney’s Bard IVC Filter 

Work to the jury will do nothing to assist them in evaluating his expert opinions.

B. Judicial Estoppel Bars Plaintiffs From Arguing That Dr. Kinney’s Bard IVC 

Filter Work is Relevant to His MDL Expert Testimony

The equitable doctrine of judicial estoppel “generally prevents a party from 

prevailing in one phase of a case on an argument and then relying on a contradictory 

argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749

(2001) (citation and internal quotation omitted). “Three factors inform the decision 

whether to apply the doctrine in a particular case.” Kobold v. Good Samaritan Reg'l Med. 

Ctr., 832 F.3d 1024, 1045 (9th Cir. 2016) (citation and internal quotation omitted). “First, 

a party’s later position must be clearly inconsistent with its earlier position.” Id. “Second, 

courts regularly inquire whether the party has succeeded in persuading a court to accept 

that party’s earlier position, so that judicial acceptance of an inconsistent position in a 

later proceeding would create the perception that either the first or the second court was 

misled.” Id. “A third consideration is whether the party seeking to assert an inconsistent 

Case 2:15-md-02641-DGC Document 9868 Filed 01/26/18 Page 3 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

position would derive an unfair advantage or impose an unfair detriment on the opposing 

party if not estopped.” Id.

Here, judicial estoppel bars Plaintiffs from arguing to the Court that facts related to 

Dr. Kinney’s Bard IVC Filter Work are relevant because such are a part of Dr. Kinney’s 

expert opinions or that he relies on those facts to form his opinions. Plaintiffs argued the 

exact opposite position to this Court in order to defeat Bard’s motion to disqualify Dr. 

Kinney. See Docs. 5803, 9428. Further, if Plaintiffs were not estopped from asserting this 

inconsistent position, Bard would suffer an unfair detriment because Plaintiffs’ arguments 

to defeat Bard’s motion to disqualify Dr. Kinney formed the basis of the Court’s decision 

not to disqualify Dr. Kinney. In addition, allowing Dr. Kinney to disclose this evidence to 

the jury would cause a substantial risk of unfair prejudice to Bard. See infra Section C.

C. Any Probative Value of Disclosing Dr. Kinney’s Bard IVC Filter Work is 

Substantially Outweighed by the Risk of Unfair Prejudice, Misleading the 

Jury, and Wasting the Court and the Jury’s Time 

Even if this Court were to find that the facts of Dr. Kinney’s Bard IVC Filter Work 

were relevant, which Bard specifically denies, this evidence should still be excluded 

pursuant to Federal Rule of Evidence 403. Any arguable probative value of this evidence

is substantially outweighed by the risk that members of the jury will falsely believe that 

Dr. Kinney’s work as an expert witness for Bard and the time he spent working as a paid 

consultant of Bard on the design, testing, and use of its IVC filters would have provided

Dr. Kinney with Bard’s “insider information” that informs his expert opinions against 

Bard in this MDL on these same issues. This will cause Bard to suffer unfair prejudice. 

Further, if Dr. Kinney is allowed to disclose these facts to the jury, Bard would be 

required to respond and take significant time establishing the parameters and bounds of 

his prior work as Bard’s expert witness and consultant. Because Plaintiffs have already 

averred that Dr. Kinney’s IVC Filter Work and his MDL expert opinions are wholly 

unrelated, this will waste the jury and the Court’s time during trial.

CONCLUSION

For these reasons, Bard respectfully requests that this Court grant Bard’s Motion.

Case 2:15-md-02641-DGC Document 9868 Filed 01/26/18 Page 4 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

RESPECTFULLY SUBMITTED this 26th day of January, 2018.

s/ Richard B. North, Jr.

Richard B. North, Jr.

Georgia Bar No. 545599

Matthew B. Lerner

Georgia Bar No. 446986

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Atlantic Station

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

PH: (404) 322-6000

FX: (404) 322-6050

richard.north@nelsonmullins.com

matthew.lerner@nelsonmullins.com

James R. Condo (#005867)

Amanda Sheridan (#027360)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren

Phoenix, AZ 85004-2204

PH: (602) 382-6000

jcondo@swlaw.com

asheridan@swlaw.com

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

Case 2:15-md-02641-DGC Document 9868 Filed 01/26/18 Page 5 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of January, 2018, the foregoing was 

electronically filed with the Clerk of Court using the CM/ECF system which will 

automatically send email notification of such filing to all attorneys of record.

s/Richard B. North, Jr.

Richard B. North, Jr.

Case 2:15-md-02641-DGC Document 9868 Filed 01/26/18 Page 6 of 6