Hughes v. C R Bard Incorporated et al

Filing 126

ORDER granting in part and denying in part Doc. 54 Motion to Strike the general opinions of Dr. Blackman. Signed on October 12, 2020 by District Judge Nanette K. Laughrey. (Opalach, Tessa)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STACY HUGHES,
Plaintiff,
v.
C. R. Bard, INC. and BARD
PERIPHERAL VASCULAR, INC.,

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No. 4:19-cv-00736-NKL

Defendants.

ORDER
Bard’s Motion to Strike the general opinions of Dr. Blackman, Doc. 54, is granted in part
and denied in part. Dr. Blackman cannot rely on or incorporate in his own opinions, the specific
portion of the expert testimony of Dr. Hurst which was stricken by the MDL court. While Dr.
Blackman may be qualified to give the same opinion that was stricken by the MDL court, it
would undermine the MDL discovery process to permit specific causation experts to clean up
evidentiary defects found by the MDL court that caused it to exclude part of a general causation
expert’s testimony.
Otherwise, the Motion is denied because Bard has not identified additional examples of
how it would be prejudiced merely because Dr. Blackman is incorporating material developed by
the MDL general causation experts into his specific causation opinions. Bard acknowledges that
Dr. Blackman can rely on general expert testimony developed during the MDL to form his
specific opinions in this case. Therefore, Bard is not prejudiced if Dr. Blackman testifies
consistently with those MDL general causation opinions. At the MDL, Bard had an opportunity
to depose and challenge the general MDL experts that Dr. Blackman is allegedly relying on.

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Indeed, that process led to the exclusion of part of Dr. Hurst’s testimony. While Bard suggests
that Hughes is seeking a “second-bite of the apple” by using Dr. Blackman to incorporate general
causation testimony into his specific causation analysis, Bard fails to demonstrate anything that
Hughes gains by a “second-bite at the apple,” much less some prejudice Bard would suffer that
would justify the painstaking process of drawing a line between specific and general causation
testimony, a line which is inherently diffuse and will likely evolve as the case unfolds during a
jury trial.
In addition, Bard has not demonstrated how the MDL process will be undermined by
permitting Dr. Blackman to directly incorporate into his opinions the general MDL discovery.
So long as Hughes’ specific causation expert is not contradicting the material developed during
general discovery or the MDL rulings, the MDL process has functioned as expected. There is no
“second-bite of the apple” in terms of the substance of the MDL discovery. However, requiring
the actual MDL experts to provide all the general expert testimony at trial, as opposed to a
specific causation expert incorporating and relying on the general MDL discovery, is likely to
make the jury trial process more cumbersome, without providing any added protection for the
MDL process.
Finally, the admissibility of Dr. Blackman’s testimony under the Federal Rules of
Evidence, is a matter appropriately raised in a motion in limine or a Daubert challenge, not
subsumed in a motion that seeks to make a distinction between general and specific testimony.
Therefore, the Court does not resolve here whether Dr. Blackman’s testimony is irrelevant or
otherwise inadmissible; it only finds that the testimony is not excluded because it may be
characterized as “general expert testimony.” Once the Court has had the opportunity to evaluate

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these issues within the broader context of the case, the Court may or may not find that Dr.
Blackman’s testimony is wholly or in part admissible.
In its Motion to Strike, Bard requests leave of Court to serve expert reports to rebut any
statements, opinions, and conclusions offered by Dr. Blackman that are not struck by the Court.
Doc. 55, p. 13. The Court concludes that this is an issue appropriately addressed in a telephone
conference. Therefore, the request is taken under advisement.
For the foregoing reasons, Bard’s Motion to Strike the general opinions of Dr. Blackman,
Doc. 54, is granted in part. Dr. Blackman cannot rely on or incorporate in his own opinions, the
portion of the expert testimony of Dr. Hurst which was stricken by the MDL court. Otherwise,
the Motion to Strike, Doc. 54, is denied. The Court has taken under advisement Bard’s request
for additional expert discovery to rebut Dr. Blackman’s testimony, pending a scheduled phone
conference.

/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: October 12, 2020
Jefferson City, Missouri

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