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James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, AZ 85004-2204 

Telephone: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Richard B. North, Jr. (admitted pro hac vice) 

Georgia Bar No. 545599 

Matthew B. Lerner (admitted pro hac vice) 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH LLP 

Atlantic Station 

201 17th Street, NW, Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

Attorneys for Defendants 

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation 

No. 2:15-MD-02641-DGC

DEFENDANTS C. R. BARD, INC.’S 

AND BARD PERIPHERAL 

VASCULAR, INC.’S REPLY IN 

SUPPORT OF THEIR MOTION TO 

EXCLUDE THE OPINIONS OF 

DEREK D. MUEHRCKE, M.D. 

(Assigned to the Honorable David G. 

Campbell) 

(Oral Argument Requested)

The Plaintiffs’ Response to Bard’s motion to exclude seven opinions of Derek 

Muehrcke, M.D., the Plaintiffs’ case-specific medical expert, fails to show that Dr. 

Muehrcke is qualified to proffer those opinions or that his opinions are based on scientific 

methodology such that they are reliable. Accordingly, Bard respectfully requests that the 

Court grant Bard’s Motion to Exclude the Opinions of Derek D. Muehrcke, M.D. (the 

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“Motion”). 

A. The Plaintiffs’ Response Confirms that Dr. Muehrcke’s Opinions 

Regarding the Design of Bard’s IVC Filters Should Be Excluded 

Because He Is Not Qualified To Proffer Them. 

Dr. Muehrcke is not qualified under Rule 702 to offer expert testimony regarding 

the design of Bard’s IVC filters because such opinions fall outside of his medical 

expertise as a cardiothoracic surgeon. Because he is unqualified, Dr. Muehrcke should not 

be permitted to provide opinions regarding alleged design flaws in Bard’s IVC filters in 

this case. 

As noted at length in Bard’s Motion, throughout Dr. Muehrcke’s report and 

deposition testimony, he repeatedly opines regarding alleged deficiencies and flaws in 

Bard’s IVC filter design. Among other things, he argues that Bard’s IVC filters were 

designed in a way that led to “inadequate migration resistance, [because of a purported] 

lack of strength and stability caused by [] weak anchoring hooks and lack of radial force 

and inadequate leg span to accommodate vessel distention,” which caused the Plaintiffs to 

experience complications. (Exhibit A to Motion, Muehrcke Report, Booker, p. 9; Exhibit 

B to Motion, Muehrcke Report, Hyde, p.8; Exhibit D to Motion, Muehrcke Report, Kruse, 

p. 8; Exhibit E to Motion, Muehrcke Report, Mulkey, p.8.) Specifically, he testified that 

flaws in several technical aspects of Bard’s IVC filters lead to specific complications: “I 

think that the design [of all Bard filters] is a structural problem. Conical shaped filters . . . 

have less migration resistance to make it easier to retrieve, and that less migration 

resistance and less radial force led to a device which does not really work appropriately.” 

(Exhibit F to Motion, Muehrcke Dep. Tr., p. 85:16-86:12.) 

But as a cardiothoracic surgeon, Dr. Muehrcke is not qualified to offer technical 

opinions on the design of Bard’s IVC filters. He has no background in engineering, 

metallurgy, or materials science, and has never designed an IVC filter, nor tested an IVC 

filter’s design. (Id. at 33:23-34:2, 89:11-90:3.) When asked what qualifications he had that 

enabled him to give opinions on the adequacy of design of an IVC filters, he could only 

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cite his clinical experience as a medical doctor: “I’m a physician who actively puts in 

inferior vena cava filters of all designs, and have to interact with patients and determine 

which is the most appropriate filter for patients to receive. I do put a lot of filters in and 

try to take a lot of filters out.” (Id. at 88:8-15.) In that same deposition, Dr. Muehrcke 

conceded that “the engineers are probably better suited to give” opinions regarding the 

technical aspects of filter design and admitted that he does not “have the expertise to 

determine how design modifications might impact clot trapping efficiency or a filter or its 

retrievability.” (Id. at 90:7-91:10.) 

The Plaintiffs do not refute that Dr. Muehrcke does not have specific expertise in 

medical device design or training in engineering, metallurgy, and materials science. They 

do not refute the fact that Dr. Muehrcke has never designed or tested an IVC filter. 

Instead, the Plaintiffs argue that Dr. Muehrcke is qualified to opine regarding design flaws 

with IVC filters simply because he has treated patients with IVC filters, has read articles 

in medical journals about IVC filters, and has read a few Bard internal documents out of 

the millions produced by Bard in this litigation. However, none of this establishes that he 

is an expert in device design, and hence, it is insufficient under Daubert for Dr. Muehrcke 

to give opinions on device design. See, e.g., Alexander v. Smith & Nephew, P.L.C., 98 F. 

Supp. 2d 1310, 1315-16 (N.D. Okla. 2000) (excluding design-related and other opinions 

of a physician who had treated thousands of patients with the device at issue, noting that 

“[t]he simple possession of a medical degree is insufficient to qualify a physician to testify 

as to the advantages of a spinal fixation device, the medical causation of spine-related 

ailments, or the mechanical functioning of an orthopedic implantation device”); Morritt v. 

Stryker Corp., 973 F. Supp. 2d 177, 188 (E.D.N.Y. 2013) (finding that a physician who 

had significant clinical experience with the medical device at issue went “well beyond the 

‘reasonable confines’ of his clinical expertise” when offering opinions regarding 

biomedical engineering and material science, and that therefore the physician was not 

qualified to offer such opinions); Steinman v. Spinal Concepts, Inc., No. 05-cv-774S, 2011 

WL 4442836, at *5 (W.D.N.Y. Sept. 22, 2011) (finding that an orthopedic surgeon was 

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not qualified to offer opinions about the design of the medical device at issue). 

In their Response, the Plaintiffs also attempt to argue that Dr. Muehrcke is 

qualified to testify that there is a design flaw in Bard’s filters “from a clinical perspective” 

that causes “performance flaws.” (ECF No. 7813, p. 7). The Plaintiffs argue that Dr. 

Muehrcke “has also studied the design of Bard’s filters and the effect on patients.” (Id. at 

8). While Dr. Muehrcke is qualified to comment on his experience with filter 

complications observed in patients and their “effect” on patients, he is not qualified to 

opine on how the design of Bard’s filters may have caused those complications or how a 

change in design might reduce the risk of those complications. In other words, the 

Plaintiffs fail to establish that there is a “clinical perspective” on engineering, metallurgy, 

and device design. The Plaintiffs likewise fail to establish how having a “clinical 

perspective” would allow Dr. Muehrcke to opine regarding what the alleged flaws are in 

the technical design of Bard’s IVC filters, such as the strength of the radial force exerted 

by an IVC filter and a filter’s migration resistance, let alone how a conical design 

produces these alleged defects in greater numbers than other filter designs. The Plaintiffs’ 

argument goes, in essence, that Dr. Muehrcke, as a doctor, is qualified as an expert on any 

topic about which he reads involving a medical device he uses in his practice.1 This is not 

1

 In support of their argument that even though he is not an engineer, Dr. Muehrcke is 

qualified to opine regarding technical aspects of device design and how design 

complications can be caused by various technical attributes of an IVC filter, the Plaintiffs 

cite Ericson v. City of Phoenix, No. CV-14-01942-PHX-JAT, 2016 WL 6522805, *4 (D. 

Ariz. Nov. 2, 2016). This case is inapposite. In Ericson, the issue was whether a nurse 

practitioner with over 40 years’ experience, and who had been a forensic nurse for over 15 

years, could opine regarding a strangulation, even though she did not have a medical 

degree. Id. Although not a doctor, the court allowed Ms. Ericson to be qualified as an 

expert, as she had specialized in strangulation, was familiar with how an individual could 

be strangled and the effects of strangulation, was a member of both the Advisory Team for 

the Strangulation Training Institute and the Strangulation Task Force for the International 

Association of Forensic Nurses, had written a medical article on strangulation, and had 

taught classes on the subject. Id. Here, by contrast, the Plaintiffs seek to qualify Dr. 

Muehrcke as an expert in a discipline in which he admittedly has no experience 

whatsoever. 

Similarly, the Plaintiffs cite to In re: Ethicon Inc. Pelvic Repair Sys. Prod. Liab. Litig., 

No. 2327, 2016 WL 4500765, **5-6 (S.D. W. Va. Aug 26, 2016) for the proposition that 

Dr. Muehrcke is qualified to opine regarding the technical aspects of the design of Bard’s 

IVC filters because he has “ample experience” with them. Ethicon does not support the 

Plaintiffs’ position, however, because there, the expert was in fact “familiar with the 

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the standard of admissibility under Daubert. See In re: Breast Implant Litig., 11 F. 

Supp. 2d 1217, 1243-44 (D. Colo. 1998) (excluding design opinions of a scientist who 

held a Ph.D. in physical chemistry because being a chemist did not automatically qualify 

the witness on design issues when he lacked training and experience concerning design of 

breast implants). 

In addition to his lack of qualifications to offer opinions on device design, Dr. 

Muehrcke fails to demonstrate that he utilized sufficient methodology in determining that 

Bard filters allegedly have design flaws. In their Response, the Plaintiffs claim that Dr. 

Muehrcke has “studied” the design of Bard’s filters, but by all accounts, that study merely 

involves reading a few Bard internal documents selected by the Plaintiffs’ counsel out of 

the millions produced in this litigation, reading some medical literature, and being a 

practicing physician who uses IVC filters. (ECF No. 7813, p. 8). This does not describe a 

methodology by which he can reliably determine that Bard filters have design flaws, 

however. Because Dr. Muehrcke has provided no methodology for his opinions regarding 

the technical aspects of the design of Bard’s IVC filters, Bard seeks the exclusion of Dr. 

Muehrcke’s opinions regarding alleged design flaws in Bard’s IVC filters. 

B. Dr. Muehrcke’s Opinions Are Unreliable Because He Wholly Adopts 

Opinions of Other Experts, Created Specifically for this Litigation, 

Without Independently Verifying Their Underlying Work. 

In their Response, the Plaintiffs claim that Bard has “greatly overreach[ed]” in 

asserting that Dr. Muehrcke relied upon opinions of other experts without independently 

verifying their work. The Plaintiffs incorrectly characterize Bard’s argument, however. 

Bard seeks to prevent Dr. Muehrcke from being a mouthpiece for the opinions contained 

design of surgical products” and had even “invented a catheter device.” Id. at 5. The court 

in Ethicon relied on the expert’s experience as a device designer to hold that he was 

qualified to opine regarding device design, specifically noting that “[e]xperience as a 

practicing urogynecologist or urologist alone does not translate into experience with or 

knowledge about the process of designing a product.” Id. Here, Dr. Muehrcke admits that 

he has no experience or training in medical device design, having never designed or tested 

an IVC filter or any similar device, or attempted to come up with an alternative device. As 

such, the Plaintiffs’ reliance on Ethicon does not alter the conclusion that Dr. Muehrcke is 

not qualified to provide his opinions regarding the design of Bard’s IVC filters. 

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in the reports of Drs. Kinney, Roberts, Kalva, Eisenberg, and Kessler, which he has 

wholly adopted without any independent evaluation. 

In their Omnibus brief,2 the Plaintiffs concede it is impermissible for an expert to 

“merely act as a conduit for the other expert’s opinion.” (ECF No. 7799, Pls. Omnibus 

Br., p. 7.) Indeed, as the Plaintiffs further concede in their Omnibus brief, the law requires 

the record to show that “the expert independently evaluated the evidence supporting the 

other expert’s opinion.” (Id.) These concessions are fatal to the Plaintiffs’ apparent 

attempt to use Dr. Muehrcke as an alternative source to introduce the opinions of Drs. 

Kinney, Roberts, Kalva, Eisenberg, and Kessler. 

In each of his reports, Dr. Muehrcke fully adopted the opinions and expert reports 

of Drs. Kinney, Roberts, Kalva, and Eisenberg, but admitted during his deposition that he 

did not independently evaluate those opinions, or the opinions of Dr. Kessler, upon which 

those reports largely are based. Dr. Muehrcke testified that he could not say he reviewed 

the depositions and medical literature cited in the report of Drs. Kinney, Roberts, and 

Kalva. (Ex. F to Motion, p. 43:6-44:10, 49:17-50:5, 50:22-24.) Neither did he discuss Drs. 

Kinney, Roberts, and Kalva’s opinions, or the bases of these opinions, with them, in an 

effort to analyze those opinions or the materials they cited. (Id. at 50:8-21.) Dr. Muehrcke 

also failed to independently evaluate Dr. Kessler’s opinions, upon which many of the 

opinions of Drs. Kinney, Roberts, Kalva, and Eisenberg rely; in fact, he did not even read 

Dr. Kessler’s report, and could not testify that he read all of the documents referenced in 

that report. (Id. at p. 42:13-44:10.) In short, no matter how the Plaintiffs attempt to walk it 

back in the Response, it is an inescapable fact that in his reports, Dr. Muehrcke simply 

“adopted” the opinions of Drs. Kinney, Roberts, Kalva, Eisenberg, and Kessler wholesale, 

without making any effort to independently verify them. 

2

 The Plaintiffs filed a separate Omnibus Statement Of Law And Generally-Applicable 

Arguments In Opposition To Bard’s Motions To Exclude Plaintiffs’ Experts Under Rule 

702 And Daubert (ECF No. 7799). The Plaintiffs’ Omnibus Statement is not directed at 

any specific Daubert motion Bard filed. As such, Bard does not respond to the Omnibus 

Statement, but instead will address any necessary issues in the context of its individual 

Daubert replies. 

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In an attempt to avoid exclusion of these opinions, the Plaintiffs simply attempt to 

provide the bases for Dr. Muehrcke’s other opinions in this case. Whether Dr. Muehrcke’s 

case-specific opinions as a treating physician have reliable bases has no bearing on the 

issue presented in Bard’s Motion. Bard does not contest that Dr. Muehrcke can testify 

within his expertise and provide opinions about the individual Plaintiffs for which he 

employed a verifiable, reliable methodology. Dr. Muehrcke cannot, however, simply 

adopt and repeat the opinions of other experts when he has not undertaken to 

independently evaluate the evidence and methodology behind them. Bard therefore 

requests that the Court prohibit Dr. Muehrcke from proffering any of the opinions of Drs. 

Kinney, Roberts, Kalva, Eisenberg, and Kessler in this case. 

C. Dr. Muehrcke Cannot Speak on Behalf of All Physicians and All 

Patients, as He Claims to in this Litigation. 

As discussed in Bard’s Motion, Dr. Muehrcke is not qualified to speak for anyone 

else but himself, and any opinion that goes to “what physicians would do with different 

information is purely speculative and not based on scientific knowledge.” In re Diet 

Drugs, No. MDL 1203, 2001 WL 454586, at *18 (E.D. Pa. Feb. 1, 2001); see also In re 

Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 557 (S.D.N.Y. 2004). Nonetheless, in his 

reports and deposition testimony, Dr. Muehrcke improperly proffers opinions regarding 

the reasonable expectations all physicians have of medical device companies. In their 

Response, while the Plaintiffs state that Muehrcke is “not speaking on behalf of other 

physicians” about their expectations, they spend the next several pages explaining that 

Muehrcke knows “what physicians need” with regard to warnings from medical device 

companies “to give their patients truly informed consent about medical procedures.” (ECF 

No. 7813, pp. 10-12.) No matter how the Plaintiffs package it, Dr. Muehrcke’s opinions 

regarding “what physicians need” is an opinion that physicians would have acted 

differently with additional complication rate information that Dr. Muehrcke claims all 

physicians require to adequately obtain informed consent. 

The Plaintiffs do not, however, provide any reasonable explanation for how Dr. 

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Muehrcke is qualified as an expert in what all physicians consider sufficient to give their 

patients informed consent regarding the implantation of IVC filters. Instead, the Plaintiffs 

merely argue that Dr. Muehrcke is qualified to speak on behalf of all physicians because 

“he has been a practicing cardiothoracic surgeon for 24 years and regularly implants and 

explants IVC filters.” (Id. at 11.) The law is clear that simply practicing as a physician 

only qualifies a doctor to speak for himself, and does not qualify Dr. Muehrcke to speak 

on behalf of other physicians. Therefore, his opinions in this regard should be excluded 

here. 

Moreover, in the Response, the Plaintiffs provide no methodology Dr. Muehrcke 

employed to arrive at his opinion that all physicians require complication rate data in 

order to obtain informed consent for implantation of IVC filters. Dr. Muehrcke admitted 

during his deposition that to derive his opinions on the expectations of all physicians, he 

performed no surveys and canvassed no physicians, but only reached out for “scuttlebutt 

talk around the coffee machine” with his partners about risks. (Ex. F to Motion, p. 98:1-8.) 

The Plaintiffs only offer by way of methodology that Dr. Muehrcke arrived at those 

opinions after 24 years in practice and after reading some medical literature stating that 

physicians “need to have enough information to understand the risks and the benefits” of 

medical devices. (ECF No. 7813, p. 11.) Absent from the Plaintiffs’ explanation of Dr. 

Muehrcke’s methodology, however, is any discussion of how his manner of practicing 

medicine—and the information he uses to perform his own risk/benefit analysis—

provides him insight into how all other physicians practice medicine, and the information 

they require to perform their own risk/benefit analysis. Put otherwise, in the Response, the 

Plaintiffs provide no insight into Dr. Muehrcke’s methodology to determine how all 

physicians use information provided to them to “understand the risks and benefits” of 

medical devices and to determine how much information physicians consider “enough” to 

understand the risks and benefits of medical devices. Indeed, Dr. Muehrcke cannot testify 

regarding the expectations of the implanting physicians for the bellwether plaintiffs, as he 

admitted that each doctor’s risk/benefit analyses is “subjective”, and an “art form, not a 

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science,” and he did not read any of the implanting physicians’ depositions before 

proffering his opinion on the information they would require to obtain informed consent 

and perform their risk/benefit analysis. (Ex. F to Motion, p. 98:18-21, 119:5-18, 154:2-9.) 

The Plaintiffs then argue that Dr. Muehrcke used proper methodology to give these 

opinions on “what doctors need to know” because he read germane medical literature 

regarding physician expectations to arrive at his opinions. Dr. Muehrcke could not 

identify any such literature in his deposition, however. Moreover, the Plaintiffs fail to 

identify any literature in the Response that would indicate the level of warning Dr. 

Muehrcke opines physicians expect from a medical device company—a warning he 

claims requires more than the potential complications to be identified. The Plaintiffs also 

state that, in forming his opinion regarding physicians’ expectations, Dr. Muehrcke 

generally reviewed “Bard documents, depositions, radiology reports, and medical 

records,” and that Dr. Muehrcke has studied IVC filters “in great depth.” (ECF No. 7813, 

p. 12.) The Plaintiffs fail to explain however, which documents, depositions, radiology 

reports, and medical records Dr. Muehrcke reviewed in coming to his opinions, how those 

documents provided him the insight necessary to arrive at his opinion, and what 

specifically he did with that information to arrive at his opinions. Similarly, the Plaintiffs 

fail in the Response to provide any specifics of Dr. Muehrcke’s “in depth” study of IVC 

filters that would allow him to proffer his opinions regarding physician expectations in 

this case. Simply put, the Plaintiffs have provided no ascertainable methodology that Dr. 

Muehrcke employed to derive his opinions regarding physicians’ expectations. 

In addition, Dr. Muehrcke’s opinion regarding physicians’ expectations generally 

is irrelevant to the Plaintiffs’ failure to warn claim, as the only inquiry relevant is the 

expectations of the individual implanting physicians. Here, all of the implanting 

physicians for the bellwether Plaintiffs have provided deposition testimony regarding their 

informational expectations and the risk/benefit analysis they each undertook in deciding to 

implant the IVC filter in each plaintiff. Dr. Muehrcke admits that each physician’s 

risk/benefit analysis is “subjective;” that he cannot know what the implanting physicians 

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“expected” because he has not read any of their depositions, admitting “I don’t know what 

they know;” and that he has no idea what any Bard sales representative told any of the 

implanting physicians. (Ex. F to Motion, pp. 98:9-99:13, 119:5-18, 154:2-9.) 

Dr. Muehrcke, by his own admission, cannot provide an opinion on the 

expectations of the physicians who implanted the filters in the bellwether plaintiffs. And, 

as explained above, Dr. Muehrcke’s generalized thoughts on physician expectations are 

irrelevant to determine whether Bard discharged its duty to warn to the implanting 

physicians in each of the bellwether cases and, therefore, are unhelpful to the jury. 

Accordingly, his opinions on physician expectations and what physicians “need” should 

be excluded here. 

D. The Court Should Exclude Dr. Muehrcke’s Rates Opinions. 

As discussed in detail in Bard’s Motion, Dr. Muehrcke is unqualified to provide 

opinions regarding alleged comparative complication rates of Bard’s IVC filters, and any 

such opinions are unsupported by any articulated methodology. Bard respectfully requests 

that the Court exclude all of Dr. Muehrcke’s opinions regarding the rates of complication 

for Bard’s IVC filters. 

As a threshold matter, the Response fails to establish that Dr. Muehrcke is qualified 

to provide opinions regarding complication rates of Bard’s IVC filters. The Plaintiffs 

merely argue that Dr. Muehrcke is qualified to provide these opinions because he is a 

medical doctor who utilizes Bard’s IVC filters in his practice and has read documents that 

the Plaintiffs purport derive complication rates for Bard’s IVC filters. What this argument 

fails to consider is that deriving and opining regarding complication rates of medical 

devices requires expertise in statistics or epidemiology, the disciplines which allow for 

derivation of rates of occurrence, not simply expertise in the practice of medicine.3 Under 

3

 The Plaintiffs argue that “[i]f Dr. Muehrcke were an epidemiologist and not a physician, 

Bard would likely argue that he was unqualified to opine about migration rates because he 

lacked the necessary medical understanding.” (ECF No. 7813, p. 13.) This is a classic 

strawman argument, which refers to, but mischaracterizes, the arguments employed in 

Bard’s Motion to Exclude the Opinions of Dr. Betensky. In that motion, Bard argued that 

Dr. Betensky’s assumptions regarding adverse event reporting practices of physicians 

were unreliable, as she had no experience with adverse event reporting through medical 

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Daubert, it is axiomatic that a doctor is not an expert in any discipline tangentially related 

to the practice of medicine simply because he is a doctor and because he read a few 

documents on the issue. See Alexander, 98 F. Supp. 2d at 1315-16; Morritt, 973 F. Supp. 

2d at 188 (finding that a physician who had significant clinical experience with the 

medical device at issue went “well beyond the ‘reasonable confines’ of his clinical 

expertise” when offering opinions regarding biomedical engineering and material science, 

and that therefore the physician was not qualified to offer such opinions); Steinman 2011 

WL 4442836 at *5. Without the expertise outlined above, Dr. Muehrcke’s rates opinions 

are simply him regurgitating the contents of documents that speak for themselves.4 As 

explained in Bard’s Motion, this is not the standard for reliable expert testimony under 

Daubert and, therefore, Dr. Muehrcke’s rates opinions should be excluded here. 

Dr. Muehrcke’s rates opinions are also subject to exclusion because the Plaintiffs 

offer no discernable methodology to demonstrate how he arrived at them, other than that 

he is a practicing physician, and has read some medical literature and a few internal Bard 

documents selected by the Plaintiffs’ counsel. The Plaintiffs fail to establish in any way 

how Dr. Muehrcke derived complication rates from his experience in his own medical 

practice, however. The Plaintiffs have provided no information on the number of Bard 

filter implants he has performed over time, or the number of complications experienced by 

Dr. Muehrcke’s patients over time. Even if they had, the fact that Dr. Muehrcke may have 

implanted and retrieved numerous filters over time and seen or heard about complications 

in Bard filters is not a scientific method for calculation of a rate. Nor does it provide the 

practice, and relied upon no expert testimony from medical professionals regarding such 

adverse event reporting practices. Bard did not argue that Dr. Betensky was not qualified 

to derive complication rates because she was not a medical doctor, but merely challenged 

the reliability of the assumptions utilized in her methods. In Bard’s Motion, however, 

Bard does argue that Dr. Muehrcke’s lack of training or experience in statistics or 

epidemiology is fatal to his ability to proffer opinions based in those disciplines. 

4

 In this regard alone, Dr. Muehrcke’s opinions are not helpful to the jury and should be 

excluded. See Payne v. C. R. Bard, Inc., No. 6:11-cv-1582-Orl-37GJK, 2014 WL 988754, 

at *5-*8 (M.D. Fla. Mar. 12, 2014) (excluding “unhelpful, plaintiff-slanted summaries and 

characterizations of the evidence which should be excluded as unhelpful to the jury”) 

(citing cases). 

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Court any idea how Dr. Muehrcke could have leveraged his practice to derive his opinions 

regarding the complication rates of Bard’s IVC filters. Similarly, although the Plaintiffs 

generally cite a review of medical literature and internal Bard documents as Dr. 

Muehrcke’s methodology, this provides no insight into Dr. Muehrcke’s methodology for 

the use of that material to arrive at his opinions regarding complication rates. Indeed, the 

medical literature and Bard documents cited by the Plaintiffs in the Response do not 

contain precise complication rates and, in any event, speak for themselves, requiring no 

expert opinion to explain their contents to the jury. In essence, in making his rate 

opinions, Dr. Muehrcke’s methodology is to impermissibly act as a voice for documents 

that do not say what the Plaintiffs say they do, and speak for themselves. As such, his 

opinions in this regard should be excluded. See Payne, 2014 WL 988754 at *5-*8. 

The lack of qualification and methodology for Dr. Muehrcke’s rate opinions is 

evident in the fact that, during his deposition, Dr. Muehrcke could not articulate what 

about Bard’s rates of complication were unacceptable, except to state that rates should be 

“as close to zero” as possible. (Ex. F to Motion, p. 65:2-65:5.) He could not, however, 

provide a rate of failure that would be acceptable. (Id. at 63:15-64:15, 65:9-11.) This is 

perhaps the best illustration that Dr. Muehrcke is not only unqualified to provide his rates 

opinions, but that he followed no discernable methodology to arrive at them. For these 

reasons, Bard respectfully requests the Court exclude his opinions regarding the 

complication rates of Bard’s IVC filters. 

E. The Court Should Exclude Dr. Muehrcke’s Opinions Regarding the 

Risk of Future Arrhythmias and Need for Treatment of Same in the 

Hyde Case Because He Admits He Is Unqualified to Offer Them. 

The Plaintiffs’ Response fails to establish Dr. Muehrcke’s qualifications to provide 

opinions regarding the risk of future arrhythmias in the Hyde case, requiring his opinion in 

that regard to be excluded. Dr. Muehrcke, by his own admission, is not qualified to 

provide opinions regarding the risk of future arrhythmias because he is a cardiothoracic 

surgeon, not an electrophysiologist. Dr. Muehrcke testified that he is unable to quantify 

what the future risk of developing arrhythmias was for Ms. Hyde and that 

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“electrophysiology would be better to do that.” (Ex. F to Motion, p. 126:12-16). 

Despite Dr. Muehrcke’s own testimony that he is not qualified to give this opinion, 

the Plaintiffs oppose Bard’s Motion, arguing that they find it “difficult to understand how 

he could be unqualified to opine about the likely effects of an injury to the heart.” (ECF 

No. 7813, pp. 18-9.) Regardless whether the Plaintiffs’ attorneys understand their experts 

qualifications, his lack of expertise in the area readily clear to Dr. Muehrcke himself, who 

testified that he could not determine the risk of future arrhythmias for Ms. Hyde—as 

between two percent, twenty percent, or greater—saying “I don’t know. Don’t know how 

her body is going to respond to having that filter fragment scar,” but that a practitioner in 

“electrophysiology would be better to” quantify Ms. Hyde’s future risk of developing 

arrhythmias. (Ex. F to the Motion, p. 126:12-126:22.) Dr. Muehrcke similarly could not 

quantify the risk of Ms. Hyde developing “lethal arrhythmias” and again would have to 

defer to an electrophysiologist to determine that risk. (Id. at 128:1-129:9; see also 113:25-

114:13, where, in referencing the Booker bellwether case, Dr. Muehrcke again notes he 

would have to leave quantification of risk of arrhythmia in a patient to an 

electrophysiologist.) Because Dr. Muehrcke frankly (and unequivocally) testified that he 

is not qualified or able to give an opinion quantifying Ms. Hyde’s risk of developing 

arrhythmias, what the potential is for such a condition to cause her sudden death, or what 

her potential need is for an AICD, the Court should exclude these opinions in the Hyde 

case. 

Conclusion 

For each of these reasons, Bard respectfully requests that this Court exclude the 

opinions of Dr. Muehrcke identified above. 

// 

// 

// 

// 

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RESPECTFULLY SUBMITTED this 18th day of October, 2017. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Georgia Bar No. 545599 

Matthew B. Lerner 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

James R. Condo (#005867) 

Amanda Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

PH: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc. 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 18th day of October, 2017, the foregoing was 

electronically filed with the Clerk of Court using the CM/ECF system which will 

automatically send e-mail notification of such filing to all attorneys of record. 

s/ Richard B. North, Jr. 

Richard B. North, Jr. 

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