Court: United States District Court for the District of Arizona
Case Name: In re Bard Ivc Filters Prods. Liab. Litig.
Citation: 2017 U.S. Dist. LEXIS 211400
In this medical device MDL, the plaintiffs retain a radiology expert witness. However, the defendant objects to the expert’s reliance on a number of information sources. Mainly, they object to the expert’s use of other expert reports, internal documents supplied via discovery, and industry practices.
The court does not agree. Rather, the court explains the expert may rely on both the facts of the case and their own expertise. The only issue the court sees is the expert’s overstep on a technical area. As such, the court only partially excludes the expert’s opinions.
The plaintiffs in this multi-district litigation (MDL) each received an inferior vena cava (IVC) filter implant. The defendant was the manufacturer of the IVC filters. The plaintiffs alleged the filters were faulty and had caused serious injury or death. Specifically, the plaintiffs claimed the filters could rotate and harm nearby organs. Additionally, they argued the defendant did not properly warn of these elevated risks. As such, the plaintiffs filed complaints including consumer fraud, unfair trading practices, manufacturing and design defects, breach of warranty, and failure to warn. The defendant denied the claims and alleged the medical community readily understood the risks of IVC filters. Further, the defendant claimed its filter had comparable complication rates to other IVC filters.
The Plaintiffs’ Radiology Expert Witness
The plaintiffs retained a radiology expert witness to help support their case. The expert was an interventional radiologist. However, the defendant moved to exclude certain portions of the expert’s testimony. Firstly, the defendant objected to the expert’s reliance on other experts’ reports to base their opinion. Secondly, the defendant objected to the expert’s opinions based on internal records the defendant supplied during discovery. Thirdly, the defendant claimed the expert could not opine on reasonable physician behavior regarding IVC filter information. Fourthly, the defendant moved to exclude opinions on the IVC filter technology and suitability of the defendant’s bench analysis.
The court first responded to the expert’s reliance on other expert reports and internal documents from the defendant. The defendant claimed doctors do not normally rely on these sources of information. As such, they alleged this did not satisfy Federal Evidence Rule 703. The court noted that an expert’s report cannot be excluded merely because it refers to, relies on, or mentions another expert’s report. Here, the court cited the judgment in In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig.
Further, the court explained that experts could rely on other experts’ reports. However, they may not parrot others or vouch for certain opinions. Additionally, the court said that the radiology expert could rely on internal documents obtained from discovery. It described the documents as factual evidence. This is permitted under FRE Rule 702—experts may apply their expertise to the factual matrix of the case. In addition, the court noted that if the defendant believed the radiology expert’s opinions used inaccurate facts, this should be addressed during cross examination.
Next, the court did not see an adequate argument on why the expert could not speak about reasonable physician behavior. The court determined this was well within the expert’s competency and experience. Additionally, the court could not establish a basis for its exclusion under Rule 702.
In response to testimony on the internal bench analysis, the court noted that the radiology expert witness was qualified to opine only on certain technical issues. As such, the court determined some of the expert’s opinions on the bench analysis were outside their scope of expertise. Other portions of their opinion, however, were permitted as they were based on their experience using IVC filters.
The court granted in part and denied in part the defendant’s motion to exclude the radiology expert witness’s testimony.
Key Takeaways for Experts
This case demonstrates the range of objections the opposition may find. However, adherence to the applicable Federal Rules of Evidence is crucial to ensuring admissible testimony. Experts should also be careful to opine on only matters squarely in their field.