This post is from the non-Reed Smith side of the blog.

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.