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
–––––––––––––––––––––––––––––––––
Robert Cook,
Individual Plaintiff,
v.
Becton Dickinson and Company, et al.,
Defendants.
MDL No. 3081
No. CV-23-01975-PHX-DGC
ORDER
Joan Sorich, M.S.N., R.N.
This multidistrict litigation (“MDL”) involves thousands of personal injury cases
related to implanted port catheters (“IPCs” or “ports”) designed, manufactured, and
marketed by Defendants Becton Dickenson and Company, C. R. Bard, Inc., Bard Access
Systems, Inc., and Bard Peripheral Vascular, Inc. (collectively, “Defendants” or “Bard”).
Defendants have filed a motion to exclude the expert opinions of Joan Sorich, M.S.N., R.N.
Doc. 5792. The motion is fully briefed and no party requests oral argument. See
Docs. 5792, 6235, 6406. The Court will grant the motion in part.
I. Background.
An IPC is a medical device surgically implanted under the skin to provide repeated
access to a patient’s vascular system without the need for multiple needlesticks into
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peripheral veins. IPCs are used to deliver chemotherapy and immunotherapy medication,
intravenous fluids, blood transfusions, and parenteral nutrition. IPCs can remain in place
for weeks, months, or even years until treatment is completed.
IPCs consist of a port and a catheter. The port is a small reservoir disc with a self-
sealing silicone center where a needle can be inserted to deliver medication. The port
typically is implanted beneath the chest skin and below the collarbone. Port bodies vary
in shape and size and are made of plastic, silicone, or titanium. The port is attached to a
catheter, which is a thin flexible tube for delivery of the medication to a vein. The catheter
is tunneled under the skin to an insertion point in a central vein. Catheters vary in width
and are made of silicone or polyurethane. IPCs typically are implanted by an interventional
radiologist or a vascular surgeon. A nurse or other medical professional then accesses the
IPC to inject the medication, which flows from the port to the catheter and into the vein.
This MDL involves multiple versions of Bard IPCs, each of which received
premarket clearance from the Food and Drug Administration (“FDA”). Bard IPCs contain
barium sulfate, a radiopaque substance that can be seen on diagnostic imaging such as
X-ray, CT, and MRI scans. Several Bard IPCs are manufactured using polyoxymethylene
(“POM”), an acetal thermoplastic polymer, in the construction of the port. Many Bard
IPCs have a port with raised palpation bumps on the silicone center, which help identify
these IPCs as power-injectable devices.
Each Plaintiff in this MDL had a Bard IPC implanted in his or her body, and claims
it was defective and caused serious injury. Plaintiffs allege that the barium sulfate in the
IPC degrades the mechanical integrity of the catheter, leading to surface irregularities that
cause catheter fracture, infection, and blood clots. Plaintiffs further allege that Bard’s
manufacturing process for the POM-containing IPCs lacks adequate measures to stabilize
the POM to prevent oxidative degradation, which causes cracks, fissures, and other
physical defects in the polymer and increases the risk of fracture, infection, and thrombosis.
Plaintiffs also allege that the palpation bumps on the power-injectable IPCs cause undue
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compression stress on the tissue surrounding the port, leading to ulceration and tissue
necrosis. See Docs. 23, 1889.
Plaintiffs claim that safer alternative designs and manufacturing processes were
available to Bard and that Bard IPCs are more dangerous than other available treatment
options. Plaintiffs assert a host of state law claims, including design and manufacturing
defects, failure to warn, breach of warranty, misrepresentation, concealment, and consumer
fraud and unfair trade practices. See Docs. 23, 1889.
Bard disputes Plaintiffs’ allegations and contends its IPCs are safe and effective and
that the medical community is aware of risks associated with IPCs. Bard further contends
that various factors impact the performance and wear of IPCs, including where the catheter
is inserted and how well the device is maintained by medical professionals and the patient.
See Docs. 23, 2023-1.
Plaintiff Cook brings his lawsuit in this MDL. Doc. 216 (Case No. CV-23-01975-
PHX-DGC). On August 24, 2022, Plaintiff had a Bard port implanted, and he subsequently
suffered from an infection. Id. at 4. Plaintiff raises claims typical of this MDL, alleging
the infection was caused by the Bard port. Id. at 5.
Plaintiff has identified Joan Sorich, M.S.N., R.N., as a medical expert. Nurse Sorich
has over 40 years of experience as a Registered Nurse. Doc. 5792-1 at 2. Beyond her
bachelor’s degree in nursing, Sorich received a master’s degree in nursing in Adult Health
in 1990, which qualified her as an Oncology Clinical Nurse Specialist. Id. at 2, 24. She
has since spent approximately 35 years practicing as an Oncology Nurse. Id. at 2. Sorich
has “cared for thousands of patients with Central Venous Access Devices,” including ports.
Id. at 3. She has “significant experience regarding [catheter related bloodstream infections]
and infection control measures.” Id. Sorich is currently the Clinical Nurse Manager of
Oncology at the Jamaica Hospital Medical Center. Id. at 20. Defendants move to exclude
her opinions under Federal Rule of Evidence 702.
/ / /
/ / /
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II. Legal Standard.
Rule 702 provides that “[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion” if the
proponent of the expert’s testimony “demonstrates to the court that it is more likely than
not that” (a) “the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue,” (b) “the testimony
is based on sufficient facts or data,” (c) “the testimony is the product of reliable principles
and methods,” and (d) “the expert’s opinion reflects a reliable application of the principles
and methods to the facts of the case.” Fed. R. Evid. 702(a)-(d). The proponent of the
expert testimony must show by a preponderance of the evidence that the testimony satisfies
each of these requirements. Fed. R. Evid. 104(a); Fed. R. Evid. 702 advisory committee’s
note to 2023 amendment (“[T]he rule has been amended to clarify and emphasize that
expert testimony may not be admitted unless the proponent demonstrates to the court that
it is more likely than not that the proffered testimony meets the admissibility requirements
set forth in the rule.”); Engilis v. Monsanto Co., 151 F.4th 1040, 1050 (9th Cir. 2025)
(“Consistent with the 2023 amendment, our precedent establishes that Rule 702 requires a
proponent of expert testimony to demonstrate each of the requirements of Rule 702 by a
preponderance of the evidence.”).
The Court acts as a gatekeeper to ensure that expert testimony satisfies Rule 702.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). The Court’s task is not
to decide whether the expert is right or wrong, but to ensure the proposed opinions satisfy
Rule 702. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., 738 F.3d 960, 969-70 (9th Cir.
2013); Engilis, 151 F.4th at 1050. If the proponent does not meet its Rule 702 burden, the
expert testimony is not admissible. See Davis v. McKesson Corp., No. CV-18-1157-PHX-
DGC, 2019 WL 3532179, at *3 n.2 (D. Ariz. Aug. 2, 2019) (“[T]he Court may admit expert
opinions only if it can determine, under Rule 104(a), that Plaintiffs have shown each of the
Rule 702 requirements to be satisfied by a preponderance of the evidence.”).
/ / /
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III. Discussion.
Defendants move to exclude several opinions.
A. Emotional Distress Opinions.
Sorich’s report includes a subsection titled “Mr. Cook endured past and ongoing
pain, suffering, and emotional distress from his [catheter related bloodstream infection].”
Doc. 5792-1 at 16. She states: “I inquired with Mr. Cook about the impact of his infection
during our interview on September 17, 2025. He described how out of all of his cancer
treatment . . . [,] that the scariest, most difficult part was his port infection.” Id. at 16-17.
Sorich further states that “[a]s Mr. Cook testified, because his cancer has recurred, he
continues to wonder about the impact of that infection on his long-term prognosis.” Id. at
16.
Defendants argue Sorich cannot opine that Plaintiff’s “infection was the ‘scariest’
part of his cancer treatment” and that his infection “resulted in ongoing concerns about his
‘long-term prognosis’” because she “is not qualified to opine on Mr. Cook’s emotional
distress and repeat descriptions of the same that come solely from Mr. Cook himself.”
Doc. 5792 at 5, 7. Plaintiff argues Sorich is qualified by her experience as an oncology
nurse to render emotional distress opinions. Doc. 6235 at 4. They cite her “over 40 years
of experience treating ‘thousands’ of patients with ports,” and her experience with “quality
of life during cancer treatment” and “symptom management.” Id. (quoting Doc. 5792-1
at 3, 5, 22).
“Ordinarily, courts impose no requirement that an expert be a specialist in a given
field, although there may be a requirement that he or she be of a certain profession, such
as a doctor.” Doe v. Cutter Biological, Inc., 971 F.2d 375, 385 (9th Cir. 1992). A medical
expert’s qualification to opine in one area, however, “does not mean he is qualified to
testify on all other medical topics.” Gorney v. Safeway Inc., No. CV-23-01413-PHX-SHD,
2025 WL 2586133, at *5 (D. Ariz. Sept. 8, 2025) (citation omitted). Plaintiff must show
by a preponderance of the evidence that Sorich’s knowledge, skill, experience, training, or
education qualify her to opine on Plaintiff’s emotional distress. Fed. R. Evid. 702.
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When asked if she was “offering the opinion that [Plaintiff’s] infection affected his
long-term prognosis,” Sorich answered, “I’m not equipped to do that nor could I say that[.]”
Doc. 5792-2 at 10. She also testified that she was not aware of any evidence in the record
“that would support his statement that his long-term prognosis was affected by his
infection[.]” Id.
Sorich testified that she does not “diagnos[e] or treat psychiatric conditions.” Id. at
3. She does not “provide therapy sessions to treat patients for anxiety or depression[.]” Id.
Her role is “emotional support.” Id.
Plaintiff argues Sorich’s deposition testimony “makes clear” her “experience does
involve recognizing when patients are in emotional distress, ‘asking questions’ to help
identify such issues, and providing emotional support in response to that condition.”
Doc. 6235 at 5 (emphasis omitted). The Court acknowledges that Sorich, as an oncology
nurse, performs an integral role in patient treatment, including emotional support. See Doc.
5792-1 at 16. The Court accepts Sorich’s assertion that “there are interventions within
[her] scope that support a patient[’s] psycho-emotional well-being[.]” Doc. 5792-2 at 3.
But experience identifying emotional distress and providing emotional support does not
qualify her to opine as an expert on whether Plaintiff – whom she has never treated –
suffered “past and ongoing pain, suffering, and emotional distress[.]” Doc. 5792-1 at 16.
The three cases cited by Plaintiff are distinguishable. See Doc. 6235 at 5. In
Saldana v. Texas Department of Transportation, 2015 WL 3952328 (W.D. Tex. June 29,
2015), the nurse had treated patients with psychological disorders, prescribed medication
for mental health disorders, and treated the plaintiff for more than 10 years, resulting in her
“personal knowledge” of the plaintiff’s “symptoms and [her] doctor’s diagnoses.” See id.
at *6. By contrast, Sorich does not treat psychiatric conditions because, as she conceded,
“[t]hat’s not within [her] scope.” Doc. 5792-2 at 3. Nor was she a treating nurse of
Plaintiff, having only spoken to him for purposes of this litigation. Id. at 8.
In Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), the Court of Appeals did not
address the question of whether an expert was qualified under Rule 702. Instead, it
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concluded only that the administrative law judge in a Social Security disability case had
erred in failing to recognize that a nurse practitioner constituted an “other source[]” under
Social Security review law that could provide evidence about a claimant’s impairment. Id.
at 1013-14. Further, the nurse in Garrison was the plaintiff’s “primary psychiatric care
giver” and diagnosed her mental health disorders. Id. at 1002.
The third cited case, Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.
2d 1244 (Miss. 2002), is a Mississippi Supreme Court decision that found a nurse qualified
to opine about “whether the inadequate nursing care resulted in worsening [the plaintiff’s]
physical pain and suffering,” as opposed to the mental and emotional damages at issue
here. Id. at 1246 (emphasis added).
Plaintiff has not shown by a preponderance of the evidence that Sorich is qualified
to opine about his damages, including emotional distress.1
B. Opinions on the Severity and Impact of Plaintiff’s Medical Conditions.
Defendants argue Sorich’s “opinions on the severity of [Plaintiff’s] infection or
whether he was cancer-free at a point in July 2022” should be excluded because she
concedes she is not qualified to offer such opinions. Doc. 5792 at 8. Defendants first cite
Sorich’s opinion that Plaintiff suffered from a “life-threatening” infection. Doc. 5792-1 at
16 (“[Plaintiff] was hospitalized for 6 days with a life-threatening infection and sepsis.”).
When asked during her deposition whether she “intend[s] to offer an independent opinion
on the severity of [Plaintiff’s] infection,” Sorich said “I’m not equipped to do that.”
Doc. 5792-2 at 11-12. She explained that “[she’s] not a physician,” and that “a physician
would really be the one to” determine the severity of a patient’s infection. Id. at 11.
Plaintiff asserts, however, that Sorich does not offer a diagnosis opinion. Sorich
testified that “[r]ecognizing” Plaintiff had a life-threatening infection “is not [the same as]
diagnosing.” See id. at 12. She instead is “reporting” that Plaintiff had a life-threatening
1 The Court further notes that Sorich offers no analysis in reaching her emotional distress
opinions (Doc. 5792-1 at 16-17), and concedes she merely repeats Plaintiff’s own
statements (Doc. 5792-2 at 8-10). Plaintiff can testify about his own condition. Repeating
his statements without expert analysis is not the proper role of a Rule 702 expert.
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infection, based not on her own diagnosis but “on what [she] read from the physician notes
in [Plaintiff’s] medical record.” See id. at 11. Sorich explained:
[Plaintiff] was septic and . . . that’s a life-threatening condition. . . . I didn’t
make that up. I didn’t decide that. I didn’t diagnose that. . . . [T]hat was
written . . . in his chart. He . . . had severe sepsis, so I think severe sepsis is
severe. . . . [I]t was a pretty bad infection. I only say that based on my past
experience as a nurse manager in bone marrow transplant.
Doc. 6235-1 at 6-7.
The Court understands from this testimony that Plaintiff’s medical chart reported he
had severe sepsis. From this, Sorich concludes he had a life-threatening infection. Sorich
explained there is an “established standard” in the medical community for categorizing
severe sepsis as “life threatening”:
Severe sepsis is life-threatening. So there are . . . grades of infection. You
can say either Grade 1, Grade 2, Grade 3, Grade 4. There is [an Eastern
Cooperative Oncology Group] . . . grading scale for toxicities or conditions
like this. So severe is life-threatening, and that’s an established standard. . . .
And it’s based on my past experience and familiarity with that set of grading
criteria that allows me to say that . . . severe sepsis is life-threatening.
Id. at 9.
Sorich’s 35 years of experience as an oncology nurse (Doc. 5792-1 at 2), through
which she has gained “experience and familiarity” with the Eastern Cooperative Oncology
Group (“ECOG”) grading criteria for categorizing an infection as life threatening, qualifies
her to conclude from Plaintiff’s chart that he had a life-threatening infection.2
Defendants also object to Sorich’s opinion that “[Plaintiff] was free of disease until
July 2022[.]” Doc. 5792-1 at 6. They contend she is not qualified to render this opinion.
Sorich agreed in her deposition that she is “not qualified to offer an opinion as to
whether [Plaintiff] was free of cancer at any particular point in time,” but stated she did not
believe she had rendered such an opinion. Doc. 5792-2 at 14. She characterized the
2 The Court notes that while Defendants’ infectious disease expert, Dr. Allos, disputes
whether Plaintiff suffered from “severe” sepsis despite his treating physician rendering
such a diagnosis (Doc. 5864-1 at 12, 15), Defendants do not challenge Plaintiff’s diagnosis
of “severe” sepsis in this motion or reply.
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statement as a summary of what she read in Plaintiff’s medical records. See id. But
Sorich’s report does not merely recount what his chart says, it asserts affirmatively that:
“Mr. Cook was free of disease until July 2022[.]” See Doc. 5792-1 at 6. Because she
admits she is not qualified to provide such an opinion, the Court will exclude it.
IT IS ORDERED:
1. Defendants’ motion to exclude the opinions of Joan Sorich, M.S.N., R.N.
(Doc. 5792) is granted in part and denied in part. Nurse Sorich may not opine (1) about
Plaintiff’s emotional distress, or (2) that Plaintiff was free of disease until July of 2022.
2. There being no requests to seal the briefs on this motion, the Clerk’s Office
is directed to file the motion (Doc. 5792), Plaintiff’s response (Doc. 6235), and Defendants’
reply (Doc. 6406) on the public docket with the same document number and filing date.
Dated this 23rd day of March, 2026.
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