Escamilla v. C.R. Bard Inc.

MICHAEL ESCAMILLA, Plaintiff, v. C.R. BARD INC., BARD PERIPHERAL VASCULAR INCORPORATED, Defendants.

No. SA-19-CV-01103-FB

United States District Court, W.D. Texas, San Antonio Division

August 25, 2021

ORDER

ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE

Before the Court in the above-styled cause of action are Defendants' Motion to Strike Expert Designation of John F. LaDisa, Jr., Ph.D. [#44] and Defendants' Renewed Motion to Strike the Generic Opinions of David C. Feldstein M.D.'s Report and Testimony [#45]. This case has been referred to the undersigned for all pretrial proceedings. The undersigned has authority to issue this Order pursuant to 28 U.S.C. § 636(b)(1)(A).

The Court held a hearing on the motions on August 20, 2021, at which all parties appeared through counsel. In issuing this Order, the Court has considered the parties' written filings, which include Plaintiffs' responses [#48, #49] and Defendants' replies [#50, #51], as well as the arguments of the parties at the hearing. For the reasons that follow, the Court will grant Defendants' motion as to Dr LaDisa and grant in part Defendants' motion as to Dr. Feldstein.

I. Background

This is a products liability and personal injury action regarding a medical device known as an inferior vena cava (“IVC”) filter. Defendants C.R. Bard, Inc. and Bard Peripheral Vascular Incorporated (collectively “Bard”) manufacture such medical devices. The IVC is a large vein that returns blood to the heart from the lower body. (Transfer Order [#3], at 6.) An IVC filter is a small device implanted in the IVC to catch blood clots before they reach the heart and lungs. (Id.)

Plaintiff Michael Escamilla is one of thousands of plaintiffs who received implants of Bard IVC filters and claim they are defective and have caused serious injury or death. These cases were consolidated in a multidistrict litigation proceeding (“MDL”) in the District of Arizona. The MDL involved multiple versions of Bard's IVC filters-the Recovery, G2, G2X, Eclipse, Meridian, and Denali. (Id.) Plaintiff's case concerns the “Meridian Vena Cava Filter.” (Compl. [#1], at 2.) All of these filters are umbrella-shaped devices that have multiple limbs fanning out from a cone-shaped head. (Transfer Order [#3], at 6.) The limbs consist of legs with hooks that attach to the IVC wall and curved arms to catch or break up blood clots. (Id.) Each of these filters is a variation of its predecessor. (Id.) In this lawsuit, Plaintiff alleges that the filter caused him to develop pulmonary emboli and deep vein thrombosis (i.e., blood clots) in his left femoral vein. (Summ. J. Mot. [#28], at 9.)

The MDL plaintiffs all allege that Bard filters are more dangerous than other IVC filters because they have higher risks of tilting, perforating the IVC, or fracturing and migrating to vital organs. (Compl. [#1], at 7.) Plaintiffs further allege that Bard failed to warn patients and physicians about these higher risks. (Id.) The MDL was formed to “centralize all pretrial proceedings and complete all common fact and expert discovery concerning Bard IVC filters.” (Id. at 9.)

Prior to the establishment of the MDL, plaintiffs' counsel had conducted substantial common discovery against Bard concerning all aspects of Bard IVC filters, including the design, testing, manufacturing, marketing, labeling, and post-market surveillance of these devices. (Id. at 9.) Bard produced numerous documents and ESI and responded to thousands of written discovery requests, and more than 80 corporate witness depositions were taken. (Id.) This pre-MDL general fact discovery was made available by Bard to all plaintiffs in the MDL. (Id.) During the MDL, further discovery was conducted in a group of 48 cases selected for consideration in the bellwether trial process, and six plaintiffs were ultimately selected for bellwether trials. (Id. at 11, 15.)

The parties designated general experts in all MDL cases and case-specific experts in individual bellwether cases. (Id. at 13.) General expert discovery closed July 14, 2017. (Id.) The MDL court determined that all other case-specific expert discovery should await remand or transfer. (Id.) The MDL court also issued numerous orders on the parties' Daubert motions, some of which are implicated in the motions currently before the Court. (Id. at 20-21.)

After all fact discovery had been completed, Plaintiff's case was transferred to this Court from the MDL on August 20, 2019. The Transfer Order states that, “[b]ecause all general fact and expert discovery has been completed in this MDL, the courts receiving these cases need not be concerned with facilitating general expert, corporate, or third-party discovery.” (Id. at 31- 32.) The parties' Joint Rule 26 Report filed in this case indicates that they agree to be bound by specific orders from the MDL and that “case-specific discovery is necessary in this action.” (Rule 26 Report [#16], at 2-3.) Although some case-specific discovery was conducted before or during the time this case was part of the MDL, the parties agree “it was minimal and limited to the submission of basic plaintiff and defense profile forms.” (Id. at 3.) The parties therefore agreed that “they will need to accomplish all case-specific discovery, including . . . the retention and deposition of case-specific experts.” (Id.)

Following transfer, this Court entered a Scheduling Order to govern this case. The Scheduling Order imposed a deadline of October 1, 2020, for Plaintiff to designate testifying experts and a deadline of November 1, 2020, for Bard to designate its testifying experts. (Sched. Order [#20], at 1-2.) Plaintiff timely designated his experts, which included Dr. David C. Feldstein, as a case-specific expert. (Pl. Desig. [#30-1], at 16-17.) The designation included Dr. Feldstein's CV, prior testimony list, and expert report. (Feldstein Report [#31-2].)

On March 15, 2021, Bard filed a motion for summary judgment as to all of Plaintiff's live claims, which remains pending. (Summ. J. Mot. [#28].) On that same day, Bard also filed a motion to strike the opinions of Dr. Feldstein, arguing that he had improperly parroted the report of Dr. John LaDisa, which was submitted in another Bard suit involving a plaintiff named Melvin Lampton, Jr., who had also suffered from deep vein thrombosis like Plaintiff (hereinafter “the Lampton Report”). (LaDisa Report [#48-1].) Dr. LaDisa was retained in the Lampton case to offer expert analysis regarding the standards, designs, physiologic conditions and computational testing applicable to the retrievable line of IVC filter designs, including the Meridian IVC filter. Dr. LaDisa was not designated as an expert by Plaintiff in this case or in the MDL.

The Court set the motion to strike for a hearing, but before the hearing, the parties resolved their dispute and filed a joint stipulation reflecting their agreement. (Stip. [#43].) The stipulation provided that Plaintiff will only offer one expert to testify on the topics and opinions that are addressed in the expert reports of Dr. David Feldstein and Dr. Darren Hurst, one of the experts designated by the plaintiffs in the MDL. The parties further agreed that, to the extent opinions offered by Dr. Hurst were excluded by the Court in the MDL, those rulings should apply to both Dr. Hurst and Dr. Feldstein, and Dr. Feldstein should also be precluded from offering the same opinions in this case. Finally, Plaintiff agreed to disclose Dr. John LaDisa as an expert witness no later than May 24, 2021, and to make him available for deposition no later than July 9, 2021. Bard reserved all objections to Dr. LaDisa's disclosure, including objections under Federal Rule of Evidence 702 and Daubert. The Court canceled the hearing and dismissed the motion but ordered that the motion could be refiled if the stipulation could not be finalized.

Plaintiff failed to designate Dr. LaDisa by the agreed May 24 deadline, instead disclosing him on June 9, 2021, several weeks later. In his disclosure, Plaintiff indicated that Dr. LaDisa was an expert “previously disclosed in other litigation.” (Pl. Supp. Disclosure [#44-2], at 9.) Plaintiff did not provide an expert report by Dr. LaDisa unique to Plaintiff's case and instead simply directed Bard to the Lampton Report “provided to counsel for Defendants on November 2, 2020.” (Id. at 9.)

On June 15, 2021, Bard filed the two motions to strike that are the subject of this Order, asking the Court to strike Dr. LaDisa's untimely expert designation and renewing its previous motion to strike as to Dr. Feldstein. The Court addresses each of the motions in turn.

II. Defendants' Motion to Strike Dr. LaDisa [#44]

Bard asks the Court to strike Dr. LaDisa's expert designation pursuant to Rule 26 and 37 on the basis that Dr. LaDisa was not timely disclosed pursuant to the parties' joint stipulation and was not accompanied by the disclosure materials required under Rule 26. Bard also argues that Dr. LaDisa's expert report contains general, non-case-specific opinions that were not disclosed in the MDL during the general expert discovery period and are therefore not permitted at this stage of the litigation. The Court will grant Bard's motion and strike Plaintiff's expert designation of Dr. LaDisa due to his untimely disclosure and the failure of Dr. LaDisa to provide an expert report specific to Plaintiff's case that complies with the Federal Rules of Civil Procedure.

Rule 26 of the Federal Rules of Civil Procedure requires that, “if the witness is one retained or specifically employed to provide expert testimony in the case, ” the expert must provide a written report prepared and signed by the witness. Fed.R.Civ.P. 26(a)(2)(B). This report must contain:

(i) a complete statement of

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