Laloli v. C R Bard Incorporated

Background

This order resolves motions in limine, which are requests to decide before trial whether particular evidence or arguments may be presented to the jury. The case concerns Laloli’s negligent-design claim involving Bard’s G2X inferior vena cava filter. The opinion also refers to punitive damages. It states that Laloli does not assert a failure-to-warn claim.

Plaintiff’s Omnibus Motion in Limine No. 1

The court ruled on the motion’s separate requests as follows:

- The request to bar any suggestion that Laloli’s filter caught or stopped a clot and saved his life was granted. Dr. Stein could explain the filter’s purpose and note that Laloli appears not to have suffered a pulmonary embolism after implantation, but no witness could conclude that the filter necessarily stopped or dissolved a clot. - The request concerning complaint rates and complication rates was granted in part and denied in part. The court barred any implication that the relatively small number of complaints showed that the product was safe or that the complaint rate equaled the complication rate. It denied the request to exclude Bard’s reported complication-rate evidence because that evidence was relevant to whether Bard acted reasonably in designing the G2X. - The request to bar references to the number of people implanted or treated based on units sold, and to total filter sales, was denied. The court said concerns about the inferences from those figures could be addressed through cross-examination. - The request to bar references to a specific percentage of doctors who use inferior vena cava filters was granted as unopposed. - The request to bar statements about what “all physicians know” was denied because Laloli did not identify the statements or references at issue. - The request to exclude opinions from trade associations or other organizations was denied. The court held that the Society of Interventional Radiology guidelines could be relevant to negligence and punitive damages, including the risk-benefit analysis under California law, if Bard could show that it knew of the guidelines at the relevant time. The court deferred ruling until trial on Bard’s argument that the materials were admissible under Federal Rule of Evidence 803(18). - The request to bar any suggestion that placing an inferior vena cava filter was a standard or routine course of treatment was denied because the evidence was relevant to the risk-benefit analysis. - The request to bar references to the number of documents Bard produced in the litigation was denied. - The request to bar “empty chair” arguments was divided. The request to bar evidence of fault or negligence by nonparties was denied, because Bard could present evidence of other causes of Laloli’s injuries. The request to bar references to, or an adverse inference from, Laloli’s failure to sue all potential parties was granted.

Other Plaintiff Motions

- Plaintiff’s Motion in Limine No. 2, seeking to exclude the Surgeon General’s Call to Action report, was denied. The court treated the report as a relevant public record and found that its value was not outweighed by the risk of unfair prejudice. - Plaintiff’s Motion in Limine No. 3, seeking to exclude references to inferior vena cava filters as lifesaving devices or statistics about thrombi and pulmonary emboli, was denied. - Plaintiff’s Motion in Limine No. 4, concerning letters to physicians or consumers, changes to instructions for use, and recalls without Food and Drug Administration consent, was granted. The court found that the briefing appeared to come from failure-to-warn cases and that Bard had not shown how this evidence was relevant to Laloli’s negligent-design claim. - Plaintiff’s Motion in Limine No. 5, concerning FDA clearance, lack of FDA enforcement action, and describing Bard’s filters as “approved” by the FDA, was granted in part and denied in part. Bard could introduce evidence concerning the FDA 510(k) clearance process, but it could not introduce evidence that the FDA had taken no enforcement action because the court found that fact had no probative value.

Defendant’s Motions in Limine

- Defendant’s Motion in Limine No. 1, seeking to exclude deaths caused by migration of a different Bard filter, was granted. The court found that Laloli had not shown the required substantial similarity between the other device and the device at issue. - Defendant’s Motion in Limine No. 2, seeking to exclude marketing, communications, and other alleged “bad acts” concerning Bard’s Recover filter, was granted. The court found that the evidence’s slight relevance was outweighed by the danger of unfair prejudice and wasting trial time, and that Recover-filter marketing did not bear on liability for the G2X or Bard’s intent for punitive damages. - Defendant’s Motion in Limine No. 3, concerning an FDA warning letter, was denied as moot as to Topics 1, 2, 4, 5, 6, and 8 because the plaintiffs had stipulated not to introduce that evidence. The requests to exclude Topic 7, defer ruling on Topic 3 until trial, and require Laloli to raise Topic 3 outside the jury’s presence were granted. - Defendant’s Motion in Limine No. 4, seeking to exclude opinions in Dr. Garcia’s supplemental expert report, was granted. The court found that the report was disclosed late and violated the scheduling order. Disclosing the opinions to Bard in other litigation, or giving Bard an opportunity to depose Dr. Garcia in other litigation, did not satisfy the disclosure requirements. - Defendant’s Motion in Limine No. 5, seeking to exclude Laloli’s hearsay testimony, was granted, subject to Laloli’s right to ask for reconsideration at trial if defendants introduced evidence making his state of mind relevant. The ruling did not admit Dr. Williamson’s statements for any purpose. - Defendant’s Motion in Limine No. 6, seeking to exclude financial information in Bard’s Product Opportunity Appraisal documents, was granted in its entirety because the information did not bear on liability, damages, or punitive damages.

Judge Jon S. Tigar entered the order on July 25, 2021.