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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 #9 

AND MEMORANDUM IN SUPPORT 

TO EXCLUDE EVIDENCE OF 

TRADE ASSOCIATIONS, SOCIETIES 

OR ORGANIZATIONS 

(The Honorable David G. Campbell) 

(Oral Argument Requested) 

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION IN LIMINE TO 

EXCLUDE EVIDENCE OF TRADE ASSOCIATIONS, SOCIETIES OR 

ORGANIZATIONS 

Plaintiff moves in limine for an Order precluding evidence, testimony, or argument 

based on the statements or conclusions, or lack thereof, of physician trade associations, 

societies, or organizations based on Federal Rules of Evidence 402, 403, 703, and 801. 

Plaintiff anticipates that Bard will attempt to elicit evidence of opinions and 

statements from various associations, trade groups, organizations, societies of physicians, 

medical providers, and/or implicate meaning to be drawn from a lack of statements or 

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opinions. See, e.g., Exhibit A, Deposition Testimony of Ann Roberts, July 7, 2017, at 

78:9-79:6. 

MEMORANDUM OF LAW 

A. Hearsay/Rule 801 

These medical societies’ statements constitute inadmissible hearsay—and possibly 

hearsay within hearsay. They are out-of-court declarations; to the extent that they are 

offered for the truth of the matter asserted, they are inadmissible under Rule 801. To the 

extent that Bard’s witnesses quote or rely on such statements in their testimony, the 

authors of the statements are not subject to cross-examination at trial. Eliciting testimony 

that these groups have not taken a position or other action regarding IVC filters would be 

even more unfair as Plaintiff would be left trying to disprove a negative without even the 

opportunity for cross-examination. See Exhibit A. 

Using the out-of-court statements of medical societies—or the absence of such 

statements—to encourage a jury to conclude that a medical society approves Bard’s 

product or found it is safe and effective is improper and prejudicial as these medical 

societies are not parties to this litigation and no witness in this trial is authorized to speak 

on these societies’ behalves regarding IVC filters. 

B. Daubert/Rule 703 

To permit Bard’s non-expert witnesses to testify about statements from medical 

societies regarding IVC filters, especially the Society of Interventional Radiologists (SIR) 

and its IVC filter Guidelines, would allow Bard to avoid the scrutiny of Daubert

challenges as to those statements. Specifically, Bard has argued in previous cases that the 

SIR Guidelines of 2003 established acceptable safety thresholds and complication rates 

for IVC filters. In reality, those Guidelines were designed for practitioners and hospitals, 

not manufacturers, and did not establish acceptable complication rates/thresholds. If Bard 

is permitted to introduce the SIR Guidelines and/or similar evidence to the jury through its 

non-expert witnesses the jury will likely be misled into concluding that Bard met its legal 

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standard of care in developing, designing, and promoting its IVC filters because of the 

veneer of reliability attached to organizations like the SIR. 

C. Probative Nature Outweighed by Prejudicial Effect/Rule 403 and 

Unnecessary Mini Trials. 

Use of the statements or opinions published by medical societies such as the SIR 

and its “Guidelines” of 2003 is also misleading because of the way Bard has tried to use 

them in other IVC filter cases. Bard continually asserts that the Guidelines were intended 

by SIR to establish acceptable failure rates for manufacturers to evaluate the safety 

profiles of their products. Bard then used the Guidelines as a marketing tool to justify its 

IVC filters’ failure rates. See Exhibit B, Compilation of Deposition Testimony of Bard’s 

Witnesses. But its own witnesses state the 2003 SIR “Guidelines” were not intended for 

manufacturers and allowing its witnesses to rely on such opinions is improper and 

misleading. Fed. R. Evid. 402, 403. Indeed, recently the SIR Guidelines were updated 

with the following clarification that further emphasizes the misleading nature of Bard’s 

misuse of the Guidelines: 

“The following events may or may not be clinically significant in 

a particular patient. For this reason, threshold for these events are 

not included in this document.” 

“The data in the table represents reported outcomes from various 

publications and not the SIR standard for complications.” 

See Exhibit C, 2016 Quality Improvement Guidelines, p. 13 (emphasis added). The 

Guidelines are also irrelevant as none of the IVC filters making up the “Guidelines” in the 

publication were retrievable filters; it does not include a single filter at-issue in this case 

and therefore is irrelevant. Fed. R. Evid. 401, 402, 403. 

The time it would take to cross-examine Bard’s witnesses on its fundamental 

misuse of the “Guidelines” would create a trial within a trial an unnecessary waste of 

time. Wilson v. Maricopa County, 2007 WL 686726, at *12-13 (D. Ariz. Mar. 2, 2007) 

(stating that if certain evidence is admitted the opposing party would be compelled to 

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present rebuttal evidence concerning the nature of the evidence causing the case to 

“devolve into a series of mini-trials”). 

Moreover, statements made by professional organizations with lofty names, or the 

implication of a lack of official statement made by such organizations, regarding Bard’s 

IVC filters has limited probative value and is substantially outweighed by the risk for 

unfair prejudice, confusion and delay. Even if such evidence were supported, it is 

irrelevant, unfairly prejudicial, and should be excluded under Federal Rules of Evidence 

402 and 403. 

Accordingly, Plaintiff requests the Court enter an Order granting this motion and 

ruling that Bard may not introduce evidence, testimony or argument based on the 

statements or conclusions, or lack thereof, of any physician trade associations, societies, 

or organizations including, but not limited to, the SIR and its 2003 Guidelines on IVC 

filters. 

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 

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