United States: Devil Is In The Details Daubert Decision

Last Updated: January 8 2018
Article by Michelle Yeary

Be specific. Be focused. Be detailed. All good things to keep in mind when requesting just about anything, including relief from a court. That is what today's decision got us thinking about. It's a Daubert ruling from the Bard IVC Filters MDL and it's a bit of a mixed bag. In re Bard IVC Filters Prods. Liab. Litig., 2017 U.S. Dist. LEXIS 211400 (D. Ariz. Dec. 22, 2017). What caught our attention the most, however, was the number of times the court reflected that the specific opinions or documents he was being asked to rule on were not specified. We are NOT taking issue with how defendants handled the motion. First, we don't know enough. Second, the requests may have been broadly presented because the expert reports were simply that deficient or that improper. We just thought it worth pointing out that the court seemed to have some difficulty making definitive rulings citing a lack of specificity in the request. It's not that unusual for courts to defer some rulings for trial wanting context to support the decision. What we don't want is for the lack of ruling to be due to a lack of detail that could have been provided (again, not saying that is what happened here).

We often struggle with the proper level of detail to provide a court. Too much can be overwhelming; too little and you haven't made your case. Too narrow and specific of a request risks an overly narrow or specific ruling and perhaps missing something altogether. We don't have a magic formula that solves this problem. So, we offer our observation and reflection and with that move onto the substance of the ruling.

Defendants in the Bard IVC Filter MDL challenged four categories of opinions offered by plaintiffs' interventional radiologist experts which the court ruled on as follows:

Reliance on Other Experts' Reports: While addressed in the opinion as a fairly broad request, we gather this had a lot to do with medical experts parroting the conclusions of plaintiffs' regulatory expert Dr. David Kessler. See In re Bard IVC Filters, 2017 U.S. Dist. LEXIS 211400 at *280-82. It appears Dr. Kessler's report discussed a litany of internal company documents – the types of documents an interventional radiologist would never see or be asked to interpret. But citing cases that allow experts to rely on other expert's conclusions, the court denied defendant's motion to exclude on this basis. While the Federal Rules are liberal regarding what an expert can rely on, including things like business records, we posit that the appropriate limitation on that be things that are within the expert's area of expertise. Simply because another expert relies on the documents doesn't make them something germane to or within the expertise of another expert.

Summaries and Editorials of Deposition Testimony and Company Documents: Defendants asked the court to prohibit this type of testimony by plaintiffs' experts, but the court found it couldn't rule on the issue because no specific testimony was identified that should be excluded. Id. at *283-84. So, the court instead offered an advisory opinion stating that experts "will not be permitted to engage in lengthy factual narratives that are not necessary to the jury's understanding of their opinions, nor will they be permitted to gratuitously comment on factual evidence or present what are essentially lawyer arguments with regard to factual testimony." Id. at *284.

Reasonable Physician Opinions: Plaintiffs sought to offer testimony from their experts both on what a reasonable physician expects to be told about risks and what a reasonable physician would do upon receipt of that information. Defendants challenged these opinions as not tested or peer reviewed, not published, and not generally accepted in the medical community. Id. at *285. But the court determined that was the wrong analysis. Rather, plaintiff's experts are relying on personal knowledge and experience which can be an acceptable basis for certain types of opinions, such as professional medical opinions. Id. at *286. Because the experts are practicing radiologists, what type of information a physician expects to receive about a product is within their knowledge and therefore, the court concluded was permissible expert testimony. Id. at *289. However, what a reasonable expert would do in response to receiving certain risk information is "more problematic." Id. at *289-90.

Whether and when to use a particular product appears to be a more fact- and patient-specific decision, not amenable to broad generalizations. The propriety of testimony on this subject will depend heavily on the context and relevancy of the question. The Court will need to draw these lines during trial.

Id. at *290.

Engineering and Testing Opinions: Certainly these are topics outside the expertise of clinical physicians. For the most part, the court agreed. The court exclude testimony on straightforward technical issues. Id. at *292. But was unwilling to say that some technical matters wouldn't be within the doctor's expertise – technical issues that they are familiar with based on their experience "implanting, monitoring, and removing IVC filters." Id. at *293. Unfortunately, the court found it couldn't be more specific before trial.

Although not much was excluded pre-trial, the forecasting on how the court would rule and limit plaintiffs' experts at trial is mostly favorable. While the court seems to have wanted more details about the opinions defendants wanted to exclude, it's hard to know if that would have made any difference. More details may just have meant more complexities that couldn't be resolved pretrial. So, the devil is certainly in the details and there is simply no way of knowing what the devil might lead to.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions