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The First Bard IVC Filter Jury Trial and Expert Witness Testimony

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Thousands of IVC Filter lawsuits filed against C.R. Bard are set for March in the first bellwether trial. Bard fails to disqualify all but one expert witness.

Phoenix, AZThe first Bard IVC Filters bellwether case begins on March 14 in Phoenix before U.S. District Court Judge David Campbell. The three-week jury trial--Sherr-Una Booker v. C. R. Bard Incorporated and Bard Peripheral Vascular Incorporated (2:16-cv-00474)-- involves tilt, migration, fracture and perforation with serious injuries. The Plaintiffs claim that due to manufacturing and design defects, Bard filters are more dangerous than other IVC filters, and that Bard failed to warn about the higher risks.

The Bard IVC filter multidistrict litigation IN RE: Bard IVC Filters Products Liability Litigation 2:15-md-02641 was formed back in October 2015. Currently more than 3,000 IVC filter lawsuits are pending in the consolidated action. The Booker case will be the first jury trial against Bard for injuries allegedly caused by one of its IVC filter products.

Here is the timetable, according to the San Diego Legal Examiner:
  • In January 8, 2018, the U.S. District Court in Arizona issued a proposed pretrial Order adopting procedures for jury selection in the first Bard IVC filter bellwether trial

  • By January 16, 2018, the Clerk will mail a case-specific questionnaire to 200 jurors.

  • On February 23, 2018, the Court will provide the parties with a list of prospective jurors the Court proposes to excuse for hardship.

  • At the final pretrial conference on March 2, 2018, counsel will be permitted to challenge the Court’s excusal of any of the listed jurors.

  • At 9:00 a.m. on March 14, 2018, fifty prospective jurors will be called for voir dire. The Court will seat nine jurors.

  • Expert WitnessTestimony

    The Court heard oral arguments on December 15, 2017. According to court documents, Bard disputes Plaintiffs’ allegations, arguing that overall complication rates for Bard filters are comparable to those of other IVC filters and the medical community is aware of the risks associated with the devices. The parties intend to use various expert witnesses at trial, including medical professionals.

    Bard filed a motion to disqualify plaintiffs’ four medical experts: Drs. Scott Resnick, Robert Vogelzang, Kush Desai, and Robert Lewandowski. The doctors, colleagues at Northwestern University’s interventional radiology department, formed a consulting group, SBBK Consultants, LLC (“SBBK”), for purposes of IVC filter litigation, and plaintiffs retained the group as testifying experts in this MDL.

    Dr. Resnick served as a consultant to Bard and previously worked for Bard as an expert in IVC filter litigation. Bard contended that, given this prior relationship and Dr. Resnick’s involvement in drafting the expert reports, each SBBK expert effectively has engaged in impermissible “side switching”.

    Plaintiffs do not oppose Dr. Resnick’s disqualification. They contend, however, that his colleagues should not be disqualified because they had no confidential relationship with Bard and received no Bard confidential information from Dr. Resnick. Defendants ask the Court to disqualify Drs. Vogelzang and Resnick on the assumption that they received confidential Bard information from Dr. Resnick. The Court concludes that the drastic step of expert disqualification cannot be based on an assumption. Only Dr. Resnick will have no further involvement in this case.

    Attorneys nationwide will be paying close attention to the Booker trial as the outcome may well influence the remaining cases in MDL 2641.


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