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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 56 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 RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION IN LIMINE NO. 5 TO 

EXCLUDE FACT EVIDENCE FROM 

PLAINTIFF’S EXPERT, DR. THOMAS 

KINNEY, REGARDING HIS WORK 

FOR BARD AS AN IVC FILTER 

CONSULTANT AND EXPERT 

WITNESS 

(The Honorable David G. Campbell) 

(Oral Argument Requested) 

Plaintiff hereby responds in opposition to Defendants’ Motion and Memorandum 

in Support of Motion in Limine No. 5 to Exclude Fact Evidence From Plaintiff’s Expert, 

Dr. Thomas Kinney, Regarding His Work As An IVC Filter Consultant And Expert 

Witness. 

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A. The Fact That Dr. Kinney Worked As A Bard Consultant Is Relevant 

To His Opinions. 

As previously demonstrated by Plaintiffs [Doc. 9248], and as addressed in 

Defendants moving papers [Doc. 9868], Dr. Kinney’s consulting relationship with Bard 

from 2005 to 2008 did not relate to the causes of action in this MDL. Dr. Kinney was not 

privy to Bard’s internal documents, nor was Dr. Kinney informed of Bard’s legal ideas, 

theories of liability, or strategy; however, the fact that Dr. Kinney worked as a consultant 

is nonetheless relevant and admissible in part because his role provides context for his 

opinions and his motivation to become an expert witness for the Plaintiff. See Exhibit A,

Kinney, Kalva, Roberts Expert Report, para. 26; See also Exhibit B, Deposition Transcript 

of Thomas Kinney, M.D., June 17, 2017 at 98:1 – 100:12. 

In perspective, Dr. Kinney’s previously role as a Bard consultant shows Bard’s 

lack of transparency with doctors and consultants, and the seriousness of the problems 

with its IVC filters. For example, Dr. Kinney testified: 

And so maybe I'm unique because I was a consultant with 

Bard, and I thought I should have had the information shared 

with me. But I think that there is other physicians that are in 

difficult situations with patients that have Bard filters, and I 

suspect if you ask them, they might say they wished they had 

known. 

See Exhibit B at 197:16–21. 

Further in paragraph 26 of the Summary of Qualifications section of the Kinney, 

Kalva, Roberts Expert Report, Dr. Kinney states: 

Had I been aware of this evidence I would not have used the 

early Bard devices (RNF and G2), nor would I have agreed to 

act as a paid consultant to Bard. I would have recommended a 

long-term follow-up study of the RNF as recommended by 

Dr. Asch to better understand and document performance 

characteristics of this filter. I would have strongly urged Bard 

to not launch RNF and G2, or to immediately recall both 

products very shortly (3-4 months) after releasing each for 

widespread use based on the adverse complications and 

injuries that were being reported by many of my colleagues 

and Bard's internal analysis of the same. 

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This testimony and report are demonstrative of the importance of Dr. Kinney 

establishing his role as a consultant; not in an effort to share data or information from his 

work as a consultant, but to set forth the corporate culture within Bard that disregarded 

concerns of consultants and patient safety.1

 That Bard once thought Dr. Kinney worthy of 

consulting with it on select items also denudes any current effort by Bard to challenge his 

credibility as a witness. Given these circumstances, the fact that Dr. Kinney served as a 

Bard consultant is relevant and admissible under Fed. R. Evid. 401 and 402. 

B. The Doctrine of Judicial Estoppel Is Not Applicable Here. 

Bard’s application of the doctrine of judicial estoppel is misplaced. Citing New 

Hampshire v. Maine for guidance, Defendants argue generally that judicial estoppel bars 

Plaintiff from asserting to the Court that facts related to Dr. Kinney’s work as a Bard 

consultant are relevant because Plaintiff argued the opposite to defeat Bard’s motion to 

disqualify Dr. Kinney. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001).2

 

Contrary to Defendants assertion, Plaintiff never represented that facts related to Dr. 

Kinney’s work are irrelevant; instead, Plaintiff argued, and this Court agreed, Dr. Kinney 

received absolutely no confidential information relevant to this litigation as part of his 

consulting and legal medical review work a decade ago, nor did Dr. Kinney have 

discussions regarding the liability theories or defense theories of the litigation at bar, or 

any of the issues addressed in his Rule 26 Report See Court Order dated Dec. 22, 2017 

 

1

 In regards to Defendants’ statement in its moving papers that Dr. Kinney was a paid 

consultant to Bard pertaining to the design, testing and use of IVC filters, Plaintiff intends 

to obey the Court’s Order that “Drs. Kinney, Kalva, and Roberts are not experts in 

mechanical design and testing, more specific rulings will have to be made during trial.” 

[Doc. 9434]. It is important to reiterate here that Dr. Kinney states in his declaration “The 

bases and substance of my opinions are not based on any information I derived or 

received when I was a consultant for Bard.” [Doc. 5803, Exhibit A]. 

2

 The two cases Defendants rely upon are distinguishable to the circumstance here. These 

cases relate to inconsistent factual positions held in separate litigations. See New 

Hampshire v. Maine, 532 U.S. 742, 749 (2001); (the court found it was unable to discern 

any broad interest of public policy that gives New Hampshire the prerogative to construe 

“Middle of the River” differently today than it did 25 years ago); See also Kobold v. Good 

Samaritan Reg'l Med. Ctr., 832 F.3d 1024 (9th Cir. 2016) (the court found that the union 

attorney, not the plaintiff took a position during the previous arbitration, plaintiff’s current 

litigating position could not be “clearly inconsistent” with a nonexistent earlier position). 

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[Doc. 9434]. In reply to Defendants’ allegations, Plaintiff stands firm in her response, and 

Dr. Kinney’s Declaration confirms, that the work Dr. Kinney performed for case-specific 

medical legal review and as a consultant did not “relate to the issues and subject matter of 

Dr. Kinney’s expert report in this MDL.” [Doc. 5803, Exhibit A]. 

C. Disclosing That Dr. Kinney’s Worked As A Bard Consultant Is Not 

Unduly Prejudicial. 

While it may be indeed frustrating to Bard that Dr. Kinney is now an expert 

witness for Plaintiff, there is nothing unfairly prejudicial about the fact Dr. Kinney 

worked as a consultant for Bard. Plaintiff’s position is that there is no prejudice to Bard 

from disclosure that Dr. Kinney previously worked as a Bard consultant, and even if there 

were, is not “unduly prejudicial” and does not “substantially outweigh” the probative 

value of the fact under Rule 403; Dr. Kinney’s role provides context for his opinions and 

motivation to become an Plaintiff’s expert witness as Dr. Kinney has firsthand experience 

of Bard’s corporate culture of disregarding patient safety. As such, fact evidence 

regarding Dr. Kinney’s role as a consultant is admissible under Rule 403. 

For these reasons, Plaintiff respectfully requests that Defendants’ Motion in Limine 

No. 5 be denied. 

RESPECTFULLY SUBMITTED this 1st day of February, 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 1st day of February, 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 9914 Filed 02/01/18 Page 5 of 5