United States v. 2020-08-13 | 18-16461 | DORIS JONES V. C. R. BARD, INC. | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: BARD IVC FILTERS PRODUCT
LIABILITY LITIGATION,
______________________________

DORIS JONES,

Plaintiff-Appellant,

v.

C. R. BARD, INC., a New Jersey
corporation; BARD PERIPHERAL
VASCULAR, INC., a subsidiary and/or
Division of defendant C.R. Bard, Inc., an
Arizona corporation,

Defendants-Appellees.

No. 18-16461

D.C. Nos. 2:15-md-02641-DGC
2:16-cv-00782-DGC

MEMORANDUM
*

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted February 3, 2020
Phoenix, Arizona

Before: GRABER, HURWITZ, and MILLER, Circuit Judges.

Doris Jones asserted product-liability claims against C.R. Bard, Inc. and

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED

AUG 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Bard Peripheral Vascular, Inc. (collectively, “Bard”), based on injuries she
suffered from an intravascular filter, a medical device designed and manufactured
by Bard. Following a jury verdict in Bard’s favor, Jones appeals the district court’s
order excluding certain evidence under Federal Rule of Evidence 403. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court has discretion to exclude otherwise relevant and
admissible evidence “if its probative value is substantially outweighed by a danger
of . . . unfair prejudice.” Fed. R. Evid. 403. A district court’s application of Rule
403 “is subject to great deference, because ‘the considerations arising under Rule
403 are susceptible only to case-by-case determinations, requiring examination of
the surrounding facts, circumstances, and issues.’” United States v. Hinkson, 585
F.3d 1247, 1267 (9th Cir. 2009) (en banc) (quoting R.B. Matthews, Inc. v.
Transam. Transp. Servs., Inc., 945 F.2d 269, 272 (9th Cir. 1991)).
Jones was injured when Bard’s “Eclipse” filter broke apart and one of the
pieces moved to her lung. She sought to introduce evidence of a different outcome
(deaths of patients) caused by a different kind of complication (cephalad
migration) from a different device made by Bard (the “Recovery” filter, last sold
more than four years before Jones received her Eclipse filter). In a careful and
thorough order, the district court concluded that the evidence would have “at most,
marginal relevancy,” and posed a danger of “prompt[ing] a jury decision based on

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emotion” because it involved patients who had died. Because “it appears from the
record as a whole that the trial judge adequately weighed the probative value and
prejudicial effect of [the] proffered evidence . . . we conclude that the demands of
Rule 403 have been met.” Boyd v. City & Cty. of San Francisco, 576 F.3d 938, 948
(9th Cir. 2009) (quoting United States v. Verduzco, 373 F.3d 1022, 1029 n.2 (9th
Cir. 2004)).
Jones contends that Bard opened the door to the introduction of the evidence
by suggesting that intravascular filters were lifesaving devices. The district court
permitted Jones to respond to Bard’s suggestion by “presenting evidence that
[intravascular] filter complications can also cause death,” but it determined that the
other evidence Jones sought to introduce remained of limited relevance. That was
not an abuse of discretion. See United States v. Sine, 493 F.3d 1021, 1037–38 (9th
Cir. 2007).
AFFIRMED.