IN RE: Bard Implanted Port Catheter Products Liability Litigation

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
IN RE: Bard Implanted Port Catheter
Products Liability Litigation
__________________________________
Kimberly Divelbliss,
Individual Plaintiff,
vs.
Becton Dickinson and Company, et al.,
Defendants.
MDL No. 3081
No. CV-23-01627-PHX-DGC
ORDER
During the course of the Divelbliss bellwether trial, Plaintiff sought to introduce
medical invoices from various medical facilities where she received treatment. Plaintiff
contends that these invoices, which total $1,521,442.88, reflect treatment caused by
Defendants’ wrongful conduct. The medical facility invoices are contained in Trial Exhibit
606, and a summary of the invoices is contained in Trial Exhibit 609B. Beginning on the
morning of August 21, 2026, and continuing over the course of several subsequent
discussions with counsel on the record, the Court has concluded that the charges in the
medical facility invoices cannot be recovered as damages in this case without expert
testimony. This order will summarize the Court’s reasons for this ruling.
A. New Mexico Law.
New Mexico law requires that the reasonableness of medical expenses, when sought
as damages, be established through expert testimony. A series of decisions by the New
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Mexico Court of Appeals has established this rule. See Segura v. K-Mart Corp., 62 P.3d
283, 290 (N.M. Ct. App. 2002) (“As we clarified in Padilla, a plaintiff seeking admission
of medical bills must . . . establish through expert testimony that medical bills are
reasonable[.]” (citing Padilla v. Hay, 900 P.2d 969, 971 (N.M. Ct. App. 1995))); Nelson v.
Albuquerque Bernalillo Cnty. Water Util. Auth., No. A-1-CA-36495, 2020 WL 1815965,
at *5 (N.M. Ct. App. Mar. 11, 2020) (“Plaintiffs contend that no expert testimony was
necessary to introduce Mrs. Nelson’s medical bills. The law is clear that ‘a plaintiff seeking
admission of medical bills must . . . establish through expert testimony that medical bills
are reasonable[.]’” (quoting Segura, 62 P.3d at 290)); Garcia v. DeLeon, No. A-1-CA-
41324, 2025 WL 3298036, at *2 (N.M. Ct. App. Nov. 26, 2025) (citing Segura and
explaining that the plaintiff “had the burden of demonstrating, through expert testimony,
that her medical expenses were reasonable”).
This ruling has also been applied by the federal district court in New Mexico. See
Pena v. Hawes, No. CV 12-0622 WPL/RHS, 2014 WL 11512592, at *1 (D.N.M. Apr. 17,
2014) (“A party seeking to admit medical bills must not only lay a foundation that
establishes an exception to the hearsay rule, that party must also establish through expert
testimony that the medical bills are reasonable[.]” (citing Segura, 62 P.3d at 289; Padilla,
900 P.2d at 972)).
Plaintiff argues that this case law represents an incorrect interpretation of the New
Mexico Court of Appeals’ decision in Padilla. Padilla held that the medical invoices
before it were hearsay, and noted that the party presenting them had an expert ready to
testify about their reasonableness if they were admitted. 900 P.2d at 971 (“The contents of
the medical bills that Padilla wanted to offer through Dr. Goldman are statements that were
made out of court. Padilla offered them so that Dr. Goldman could express his opinion
regarding the reasonableness of the charges stated in the bills.”). Thus, an expert witness
was available and ready to testify in Padilla. But even if the New Mexico Court of Appeals
overstated the holding of Padilla when it decided the Segura case seven years later, this
Court cannot conclude that Segura is an invalid statement of New Mexico law. Two of the
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judges on the Padilla case, including Padilla’s author, were on the three-judge panel that
decided Segura. Moreover, the decision in Segura has been followed in subsequent New
Mexico Court of Appeals decisions. See Nelson, 2020 WL 1815965, at *5; Garcia, 2025
WL 3298036, at *2. The Court cannot accept Plaintiff’s invitation to disregard this line of
cases because she believes the second case in the line, Segura, misinterpreted the first case
in the line, Padilla. Indeed, when asked to change this rule, the Court of Appeals in Nelson
said “[w]e decline to depart from precedent[.]” Nelson, 2020 WL 1815965, at *5.
The New Mexico Supreme Court has not addressed this issue, and Plaintiff argues
that this Court is not bound by decisions of an intermediate appellate court in New Mexico.
This is true, but the Court’s task is to predict how the New Mexico Supreme Court would
rule on this question. Decisions of the New Mexico Court of Appeals are relevant authority
on this point. See Mares-Moreno v. Singh, 278 F. Supp. 3d 1223, 1237 (D.N.M. 2017)
(explaining that federal courts “may and will consider the Court of Appeals’ decision in
making its determination” (citation omitted)); Wade v. EMCASCO Ins. Co., 483 F.3d 657,
666 (10th Cir. 2007) (“Where no controlling state decision exists, the federal court must
attempt to predict what the state’s highest court would do. In doing so, it may seek
guidance from decisions rendered by lower courts in the relevant state[.]” (citations
omitted)). Furthermore, the expert requirement established in Segura has stood for twenty-
four years without change by the New Mexico Supreme Court. The Court finds that the
Segura line of cases represents the best indication of how the New Mexico Supreme Court
would rule on this issue, and therefore concludes that an expert witness is needed in this
case to establish the reasonableness of the medical invoices.
Plaintiff notes that the New Mexico Committee on the Rules of Evidence has
proposed an amendment to the rules that would eliminate this requirement. This proposed
rule has been published for public comment and has received positive and negative
responses.1 Under New Mexico rule making procedures, the evidence committee is now
1 See Proposed Revisions to the Rules of Evidence Proposal 2026-022 (Mar. 6,
2026), https://supremecourt.nmcourts.gov/wp-content/uploads/sites/2/2026/04/Proposal-
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charged with evaluating the public comments and making a recommendation to the New
Mexico Supreme Court. Plaintiff has not cited, and the Court has not found, any
recommendation from the evidence committee. And the New Mexico Supreme Court has
not approved the rule. This Court cannot conclude that the committee’s recommendation
is a stronger indication of how the New Mexico Supreme Court would rule than the
established line of Court of Appeals decisions.2
B. Dr. Dim.
Dr. Dim is Plaintiff’s cardiologist and has provided much of the treatment Plaintiff
claims was required by Defendants’ wrongful conduct. Dr. Dim has treated Plaintiff for
several years, performing four ablations, prescribing heart rhythm medication, and
implanting a pacemaker. Plaintiff originally proposed that Dr. Dim opine on the
reasonableness of his own medical invoices, which the Court allowed, and that he also
opine on the reasonableness of the medical facility invoices. Unlike his own invoices, Dr.
Dim did not issue medical facility invoices – they were issued by a medical facility where
Plaintiff was admitted and received treatment. The Court ruled that Dr. Dim could not
opine on the reasonableness of the medical facility invoices.
Plaintiff contends that Dr. Dim is a sufficient expert to testify on the reasonableness
of the medical facility invoices. The Court is doubtful, given that the invoices were issued
by a medical facility where Plaintiff was admitted, not Dr. Dim’s office. But even if this
is true, Dr. Dim was not properly disclosed as an expert on these issues.
In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011),
the Ninth Circuit held that a non-retained expert, such as a treating physician, can testify
about opinions formed during the course of treating the plaintiff without producing an
expert report under Rule 26(a)(2)(B). Id. at 826. But if a treating physician is asked to
2026-022-Medical-Billing-comments-begin-on-p.-4.pdf.
2 Plaintiff’s citation of Scott v. Transwestern Tankers, Inc., 387 P.2d 327 (N.M.
1963), is not persuasive because that case involved a workmen’s compensation claim and
has not, in the intervening 63 years, been expanded to include personal injury cases.
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render opinions that were not developed during the course of treatment, the expert must
produce a written report. Id.
The Court specifically warned Plaintiff of this requirement early in this litigation.
In Case Management Order No. 9, the Court specifically called the parties’ attention to the
Goodman case and advised them that treating physicians and similar non-retained experts
would need to produce expert reports for any opinions that were not formed during the
course of treatment. Doc. 114. The Court’s order stated:
In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th
Cir. 2011), the Ninth Circuit held that ‘a treating physician is only exempt
from Rule 26(a)(2)(B)’s written report requirement to the extent that his
opinions were formed during the course of treatment.’ Thus, for opinions
formed outside the course of treatment, Rule 26(a)(2)(B) written reports are
required. Id. For opinions formed during the course of treatment, Rule
26(a)(2)(C) disclosures will suffice.
Id. at 3 n.1. Thus, Plaintiff was well aware of the requirement that Dr. Dim produce an
expert report for opinions formed outside the course of his treatment.
Plaintiff provide no evidence that Dr. Dim formed his opinion about the
reasonableness of the medical facility invoices during the course of treating Plaintiff.
Rather, Plaintiff’s counsel stated that Dr. Dim reviewed the medical facility bills shortly
before this trial. Thus, any opinion he formed on the reasonableness of the medical facility
invoices were formed after his treatment of Plaintiff and must have been disclosed in a
Rule 26(a)(2)(B) expert report under Goodman and CMO 9.
Because Dr. Dim failed to produce a report, he cannot testify about the
reasonableness of the medical facility invoices unless the failure to produce a report is
substantially justified or harmless. Fed. R. Civ. P. 37(c)(1). The failure is not substantially
justified because the Court specifically advised Plaintiff, long before this trial, about the
Goodman case and the need for non-retained experts to produce reports in circumstances
like this. It is not harmless because Defendants received no disclosure of Dr. Dim’s
medical-invoice opinions and have made clear they believe that many of the medical
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invoices relate not to injuries allegedly caused by Defendants’ product, but to Plaintiff’s
other medical conditions. Because Dr. Dim provided no report explaining the basis for his
opinion, Defendants had no opportunity to depose him on the medical-invoice opinions,
prepare for cross-examination, or designate a counter-expert. The Court accordingly
precluded Plaintiff from using Dr. Dim as an expert on this subject under Rule 37(c)(1).
C. Procedural Versus Substantive Law.
Plaintiff argues that the Court need not apply the New Mexico expert witness
requirement under the Erie doctrine because the requirement is procedural, not substantive.
The Court does not agree.
The court which has spoken most directly on this issue is the Fifth Circuit. “The
law governing what damages are recoverable is substantive, and therefore . . . state law
‘governs . . . the manner in which those damages must be proved[.]’” Vinales v. AETC II
Privatized Hous., L.L.C., 146 F.4th 434, 446 (5th Cir. 2025) (quoting Homoki v.
Conversion Servs., Inc., 717 F.3d 388, 398 (5th Cir. 2013)); see also Wackman v.
Rubsamen, 602 F.3d 391, 400 n.2 (5th Cir. 2010) (“Federal courts look to state law . . . to
determine the general kind of evidence necessary to establish a particular state law cause
of action.” (citations omitted)). Thus, “whether damages require direct proof or allow
circumstantial evidence, or require expert testimony or allow anecdotal evidence, is
determined . . . [by] state law.” Vinales, 146 F.4th at 446 n.14. Other federal courts agree
with the Fifth Circuit. See Poulter v. Cottrell, Inc., No. 12-CV-1071, 2016 WL 7451630,
at *2 (N.D. Ill. Dec. 28, 2016) (“The Seventh Circuit has also accepted state law as
controlling other evidentiary questions in products liability cases, such as whether a defect
can be proved by circumstantial evidence. See, e.g., Schaefer v. Universal Scaffolding &
Equip., LLC, 839 F.3d 599, 604-05 (7th Cir. 2016). Other circuits have also applied state
law to determine whether expert testimony is required. See, e.g., Newell Rubbermaid, Inc.
v. Raymond Corp., 676 F.3d 521, 532 (6th Cir. 2012).”); In re Lipitor (Atorvastatin
Calcium) Mktg., Sales Pracs. & Prods. Liab. Litig., 227 F. Supp. 3d 452, 467-69 (D.S.C.
2017) (“Like other federal courts that have addressed the issue, this Court finds that a state
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law requirement that expert testimony is necessary to establish a particular element of a
cause of action . . . is a statement of state substantive policy[.]” (citations omitted)); Milam
v. State Farm Mut. Auto. Ins., 972 F.2d 166, 170 (7th Cir. 1992) (“[W]here a state in
furtherance of its substantive policy makes it more difficult to prove a particular type of
state-law claim, the rule by which it does this, even if denominated a rule of evidence or
cast in evidentiary terms, will be given effect in a diversity suit as an expression of state
substantive policy.” (citations omitted)); see also Duke v. Garcia, No. 11-CV-784-
BRB/RHS, 2014 WL 1333151, at *1 n.1 (D.N.M. Feb. 28, 2014) (applying New Mexico
law requiring expert testimony to establish medical causation); In re Trasylol Prods. Liab.
Litig., No. 08-MD-1928, 2013 WL 1343529, at *3 n.5 (S.D. Fla. Apr. 2, 2013) (same under
New York law); Root v. Tempe St. Luke’s Hosp., 368 Fed. Appx. 848, 848-49 (9th Cir.
2010) (same under Arizona law).
Plaintiff’s citation to Feldman v. Allstate Ins. Co., 322 F.3d 660 (9th Cir. 2003), is
not persuasive. Feldman explained that while most evidentiary rules are procedural in
nature, “the Federal Rules do not supplant ‘all state law evidentiary provisions with federal
ones.’ Rather, state evidence rules that are ‘intimately bound up’ with the state’s
substantive decision making must be given full effect by federal courts sitting in diversity.”
Id. at 666-67 (holding that California Penal Code § 632, which limits admissibility of
illegally intercepted conversations, was an exception to the general rule that the Federal
Rules govern the admissibility of evidence in diversity cases because the statute embodies
a state substantive interest in the privacy of California citizens); see also Sims v. Great Am.
Life Ins., 469 F.3d 870, 880 (10th Cir. 2006) (“The admissibility of evidence in diversity
cases in federal court is generally governed by federal law. Nevertheless, it is well
recognized that Congress did not intend the procedural rules to preempt the so-called
substantive state rules of evidence . . . . [A]lthough the application of these rules will affect
the admissibility of some evidence, they in reality serve substantive state policies[.]”
(citation omitted)); State ex rel. Gesswein v. Galvan, 676 P.2d 1334, 1337 (N.M. 1984)
(“There may be areas in which procedural matters so closely border upon substantive rights
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and remedies that legislative enactments with respect thereto would be proper. No specific
definition can be stated which would clearly delineate the distinction. Each case must be
determined upon its own circumstances.” (citation omitted)).
The Court concludes that the New Mexico requirement that the reasonableness of
medical expenses be established through expert testimony is substantive, not procedural.
Like many of the cases cited above, the Court finds the expert testimony requirement to be
more than a procedural step on the road to damages – it actually raises the level of proof
that must be presented before medical expenses are recovered. It is a policy statement that
more than lay opinion is needed to show that medical invoices – which can often be
complicated and difficult to understand – are reasonable.
D. The Custodian of Records Affidavit.
Plaintiff notes that the medical facility invoices are accompanied by an affidavit of
a custodian of records authenticating them as facility invoices and stating that the charges
are reasonable and necessary. Trial Ex. 606. Plaintiff argues that this affidavit can satisfy
the expert witness requirement of New Mexico law. The Court does not agree.
1. The Affidavit is Inadmissible Hearsay.
The affidavit is an out-of-court statement offered for the truth of the matter asserted.
Plaintiff argues that it is admissible under Federal Rule of Evidence 807, but the Court is
not persuaded.
First, Rule 807 applies only if the affidavit is more probative on the point for which
it is offered than any other evidence Plaintiff could “obtain through reasonable efforts.”
Fed. R. Evid. 807(a)(2). Plaintiff could have, through reasonable efforts, obtained an
expert witness to testify to the reasonableness of the invoices.
Second, Rule 807 applies only if the affidavit is supported by sufficient guarantees
of trustworthiness. Fed. R. Evid. 807(a)(1). Defendants vigorously contend that many of
the medical invoices are not related to Plaintiff’s heart issues, and the affidavit contains no
indication of the qualifications of the declarant or how he determined the bills are
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reasonable. These key issues, which would be necessary for the trustworthiness of this
declaration, are entirely missing from the affidavit.
Third, Plaintiff did not give written notice before trial of its intent to use the residual
exception, as required by Rule 807(b), and the Court cannot find good cause to excuse the
lack of pretrial notice.
2. The Affidavit Does Not Satisfy New Mexico Law.
Even if the affidavit was admitted under Rul 807, it provides no indication that the
declarant is an expert as required by New Mexico law. Plaintiff has provided no
information regarding his expertise, and if he were to be treated as an expert, he would
need to have been disclosed by Plaintiff under Rule 26, which did not occur.
Plaintiff argues that a Texas statute, Tex. Civ. Prac. & Rem. Code § 18.001, not only
makes the affidavit admissible in court, but also elevates it to the level of expert evidence.
But in addition to the fact that this case is governed by New Mexico law, the Texas statute
makes clear that the affidavit is not treated as coming from an expert, even in Texas. Before
§ 18.001’s enactment, the “reasonableness of medical expenses could be proven [in Texas]
only by expert testimony even if the amount was undisputed.” Ortiz v. Nelapatla, 734
S.W.3d 400, 405 (Tex. 2026) (citation modified). The Texas legislature passed § 18.001
“to streamline that process by allowing a party to avoid adducing expert testimony on those
issues at trial through pretrial service of affidavits containing evidence sufficient to support
the claimed costs.” Id. at 405-06 (emphasis added). Section 18.001 allows a party to serve
an affidavit made by a “non-expert custodian” testifying that “the amount a person charged
for a service was reasonable at the time and place that the service was provided and that
the service was necessary[.]” Vansill v. Dollar Tree Stores, Inc., 520 F. Supp. 3d 847, 851
(E.D. Tex. 2021) (emphasis added); § 18.001(b), (c)(2).
What is more, § 18.001 allows an opposing party to serve a counteraffidavit, but
unlike the initial affidavit, the counteraffidavit must be made by an expert – that is, “a
person who is qualified, by knowledge, skill, experience, training, education, or other
expertise, to testify in contravention of . . . the initial affidavit.” § 18.001(f). When a
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counteraffidavit challenges a medical expense, the initial affidavit “is no longer sufficient
evidence to support a finding of reasonableness and . . . expert testimony is required to
support such a finding.” Ortiz, 734 S.W.3d at 406; see also In re Chefs’ Produce of
Houston, Inc., 667 S.W.3d 297, 301 (Tex. 2023) (“In the face of a compliant
counteraffidavit, the claimant may not reach the jury on the reasonableness and necessity
of her medical expenses without expert testimony.”). Clearly, an initial affidavit served
pursuant to § 18.001 is not treated as coming from an expert. Indeed, the entire purpose of
the statute is to allow a party to avoid obtaining expert testimony. See Ortiz, 734 S.W.3d
at 406.
The Court also notes that Plaintiff did not follow the Texas statute’s notice
procedure in this case, which would have given Defendants an opportunity to serve a
counteraffidavit and force Plaintiff to use an expert witness.
E. Conclusion.
For all these reasons, the Court concludes that the medical facility invoices and their
summary cannot be used to prove Plaintiff’s damages in this trial.
Dated this 31st day of August, 2026.
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