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
–––––––––––––––––––––––––––––––––
Judy Hicks,
Individual Plaintiff,
v.
Becton Dickinson and Company, et al.,
Defendants.
MDL No. 3081
No. CV-23-01703-PHX-DGC
ORDER
Darren R. Hurst, M.D.
This multidistrict litigation (“MDL”) involves thousands of personal injury cases
related to implanted port catheters (“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 case-specific expert opinions of Darren R. Hurst, M.D.
Doc. 5780. The motion is fully briefed and no party requests oral argument. The Court
will grant the motion in part.
I. Background.
On February 17, 2021, Plaintiff Judy Hicks had a Bard port implanted for
chemotherapy related to breast cancer. Doc. 5780-1 at 3. After several chemotherapy
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infusions, and because of difficulty withdrawing blood from the port during several of
those infusions, the port was surgically removed on August 3, 2022. Id. at 6. Plaintiff
claims that her port problems arose because the port became blocked by thrombus as a
result of a product defect.
Plaintiff has identified Darren Hurst, M.D., as a medical expert. Dr. Hurst is an
interventional radiologist. Doc. 7091-4 at 5. He practices as the Chief of Vascular and
Interventional Radiology for the St. Elizabeth Health System and holds other radiology-
practice positions. Id. at 5, 50-51. He is also an Assistant Professor of Interventional
Radiology at the University of Kentucky College of Medicine. Id. at 5, 51. Hurst regularly
implants and removes port catheters. Id. at 5. Defendants move to exclude two of Hurst’s
opinions under Federal Rule of Evidence 702.
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
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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.”).
III. Dr. Hurst’s Pain Opinion.
In the seventh opinion of his expert report, Hurst notes that Plaintiff Hicks testified
that she experienced significant pain during the infusion on April 9, 2021, and during every
infusion after that date. Doc. 5780-1 at 8. Hurst opines that “[b]ecause these painful
episodes coincided with difficulty aspirating and flushing, events attributable to thrombotic
occlusion within the catheter, her repeated occlusions directly caused increased
manipulation and pressure in the port, leading to consistent access-related pain.” Id.
Hurst’s opinion identifies three categories of difficulties Plaintiff experienced from
the port’s access problems: “procedural discomfort, pain during accesses, and quality-of-
life impacts[.]” Id. Hurst was questioned about these difficulties in his deposition.
Doc. 6252-3.
When asked about procedural discomfort, Hurst testified that blood clotting in the
catheter could have produced “extravasation” (id. at 4), which occurs when a medication
being injected into a patient’s veins leaks into surrounding tissue. Hurst testified that he
did not know if this happened to Plaintiff. Id.
When asked about quality-of-life impacts, Hurst talked about pain at the port site
during infusions. Id. at 5. He said this possibly could have been caused by extravasation,
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but he did not know if that was the cause and could not say it was to a reasonable degree
of probability. Id.
The questioning then turned to pain during access, and Hurst was asked about this
statement in his report: “[f]rom an interventional radiology standpoint, the need for
additional needle adjustments, higher injection pressures, and thrombolytic installations in
an occluded catheter predictably produces patient discomfort, as was documented in Ms.
Hicks’s case.” Id. at 5-6. Hurst testified that “because the device was having difficulty,
she had to have extra infusions, extra injections of medication, thrombolysis to try and
open the port up, and that requires, you know, additional time and effort and, you know,
access at the port.” Id. Hurst agreed that the pain from these additional procedures was of
limited duration — “limited to the adjustment of the needle and the injection at that time”
(id. at 7) – but he did not express doubt about this opinion. In his rebuttal report, Hurst
opines that “pain complaints of the kind that Ms. Hicks mentioned in her sworn testimony
would be expected, given her experience and are well established symptom of port
occlusion.” Doc. 6252-4 at 5.
The Court concludes that Hurst’s opinion regarding extravasation as a possible
cause of Plaintiff’s pain is inadmissible. Hurst testified that he does not know if
extravasation caused Plaintiff’s pain and could not say so to a reasonable degree of
probability.
Defendant argues that Hurst’s other pain opinion is inadmissible because he
admitted that pain can occur during infusions even without an occlusion. See Doc. 6252-3
at 7. But Hurst’s opinion is limited to the pain Ms. Hicks experienced on April 9, 2021
and thereafter, when the port access problems occurred. Doc. 5780-1 at 8. And he has
identified the mechanisms by which additional pain can be caused when occlusion of a
catheter occurs: extra needle sticks, extra manipulation of the port, thrombolytic injections,
higher injections pressures, and more port procedures. Docs. 5780-1 at 8, 6252-3 at 5-7.
The Court will not exclude Hurst’s opinion that the additional manipulation and injections
required because of the occlusion caused Plaintiff additional pain. Hurst adequately
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explained his reasons for this opinion, and his many years of experience as an
interventional radiologist who implants and removes ports provides a sufficient expert
basis for it.
IV. Alternative Port Opinion.
Hurst’s rebuttal report states: “among alternatives on the U.S. market, the
AngioDynamics Bioflo port, which is designed with an antithrombotic catheter surface,
would have been an appropriate choice for Ms. Hicks.” Doc 5780-3 at 5. Defendants argue
that this opinion should be excluded because it is not combined within an opinion that the
Bard port was defective or that the AngioDynamics port would have been a safer
alternative. Doc. 5780 at 5. The Court does not agree. The existence of an alternative
design will be an issue in this case. The fact that other experts will address whether the
Bard design was defective, and whether antithrombotic coatings are effective, does not
change the fact that the availability of antithrombotic alternatives will be relevant. Hurst
does not need to give all the opinions related to this subject. If the jury finds from other
evidence that antithrombotic coatings like those used on the AgioDynamics port would
have been a safer alternative design, it will be relevant that an interventional radiologist
opined that such a port could have been used for Ms. Hicks.
IT IS ORDERED that Defendants’ motion (Doc. 5780) is granted in part and
denied in part. The motion is granted with respect to any opinion from Dr. Hurst that
Plaintiff’s pain during infusion was caused by extravasation. The motion is otherwise
denied.
Dated this 15th day of October, 2026.
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