1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P.

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

Telephone: 602.382.6000 

Facsimile: 602.382.6070 

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 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

Telephone: (404) 322-6050 

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. 

AND BARD PERIPHERAL 

VASCULAR, INC.’S REPLY IN 

SUPPORT OF THEIR MOTION TO 

EXCLUDE THE OPINIONS OF 

DAVID GARCIA, M.D. AND 

MICHAEL STREIFF, M.D. 

(Assigned to the Honorable David G. 

Campbell) 

(Oral Argument Requested) 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 1 of 13
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

INTRODUCTION

Bard moved to exclude three specific categories of opinions from Drs. Garcia and 

Streiff (collectively the “Doctors”): (1) their “opinions” parroting Dr. Kessler’s opinions; 

(2) their opinions regarding physician expectations and corporate conduct; and, (3) Dr. 

Garcia’s case-specific opinions for Plaintiff Doris Jones. Plaintiffs, however, muddy the 

waters and argue issues not originally raised in Bard’s motion.1

ARGUMENT 

A. Plaintiffs Concede That Regurgitating Dr. Kessler’s Opinions is 

Impermissible. 

Plaintiffs concede in their Omnibus Statement that an expert can only rely on 

another expert’s opinion “as long as the expert does not [1] merely act as a conduit for the 

other expert’s opinion and [2] provided that the record shows that the expert 

independently evaluated the evidence supporting the other expert’s opinion.” (Dkt. No. 

7799 at 7 (citing In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales 

Practices, & Prods. Liab. Litig., 978 F. Supp. 2d 1053 (C.D. Cal. 2013))). Plaintiffs argue 

that the Doctors meet these two requirements, but do not address the numerous testimony 

citations in Bard’s motion to the contrary.2 The Doctors’ testimony and expert report 

Addendum make clear that they are serving as simple conduits for Dr. Kessler’s opinions, 

and that the Doctors have done no independent evaluation of the documents underlying 

Dr. Kessler’s report. 

First, for example, Plaintiffs accuse Bard of “an exaggerated mischaracterization” 

by asserting that the Doctors “regurgitated” Dr. Kessler’s report. (Dkt. No. 7808 at 8.) Yet 

this is precisely what Dr. Garcia admitted to: 

1

 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 (Doc. 7799). 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. 

2

 However, Plaintiffs omit citing the second prong in their Opposition brief, and only 

superficially address this requirement as discussed below. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 2 of 13
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Q. So in drafting your addendum and kind of essentially 

regurgitating what Dr. Kessler found in his report, did 

you attempt to be as accurate as possible in describing 

Dr. Kessler’s findings? 

A. I did. 

(Mot. Ex. D, Garcia Dep., at 210:1-5.). Dr. Streiff also unequivocally testified that the 

Doctors did not modify Dr. Kessler’s findings in any way, i.e., they are serving as a mere 

conduit for Dr. Kessler’s opinions: 

Q. Okay. But you didn’t modify Dr. Kessler’s findings in 

any, any way? 

A. I don’t think so, no. 

Q. You didn’t change any of his findings in the process of 

taking what you saw from his report and inserting it 

into your report? 

A. I don’t – I don’t think so. No, I don’t recall doing that. 

Q. So you included seven numbered paragraphs in your 

report, you addendum repeating what Dr. Kessler 

himself said in his own report? 

A. Right. 

(Mot. Ex. C, Streiff Dep., at 303:8-19.) 

Also, Plaintiffs argue that Dr. Kessler’s report only provided the Doctors with 

factual background and confirmed what they independently researched. (Pl. Br. at 8.) The 

Addendum itself belies this assertion. It goes beyond mere factual background by opining 

that Bard misled the FDA, and what Bard should and should not have done as a 

reasonable manufacturer. And, it paraphrases Dr. Kessler’s opinions on pre-market 

regulatory submissions, and engineering and testing data far outside the practice of 

medicine, let alone the specialty of hematology, and paraphrases topics that the Doctors 

did not independently research: 

• Bard mislead [sic] the FDA on the tendency of the Recovery filter to 

migrate...They represented to others and used an inappropriate minimum safety 

threshold and performance specification in their stability/migration in vitro 

studies...” (Mot. Ex. A, Rep., at p. 8, ¶ 1.) 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 3 of 13
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

• In light of these test results...Bard should not have marketed the filter since its 

performance was significantly poorer than the comparator, was not performing 

as intended, expected and represented prior to marketing and failed safety 

thresholds for migration... (Id. at ¶ 3.) 

• Dr. Kessler also noted that perforation, filter fracture and tilting were 

significantly more common with the RNF than the SNF. Internal documents 

quoted in Dr. Kessler’s report confirm that Bard knew of these deficiencies 

with the RNF but continued to market the device...In experimental testing [the 

G2] failed to meet the pre-specified standard of resistance to migration of 

greater than or equal to the SNF, so Bard changed and lowered the performance 

standard...” (Id. at p. 9, ¶ 5.) 

Second, regarding the additional requirement of independent evaluation of the 

underlying facts, the extent of Plaintiffs’ argument is, without citing the record, that the 

Doctors’ “evaluation of the documents supporting the opinions of Drs. Kessler [sic] 

satisfies any reliability concerns the Court may have...” (Pl. Br. at 9.) However, the 

Doctors testified that they only reviewed two out of Dr. Kessler’s more than 500 

underlying documents: a medical article by Dr. Asch, and Dr. Betensky’s expert report, 

which the Doctors also did not independently evaluate. (Mot. Ex. D, Garcia Dep. 212:8 – 

213:6.) The Doctors admitted that they did not even review the underlying data, let alone 

evaluate it. Dr. Garcia was unequivocal: 

Q. Did you independently review and assess the reliability 

of the underlying data that Dr. Kessler relied on? 

A. Not beyond what I just told you [referring to the Asch 

article and Betensky report]. 

Q. Okay. Did you check or test any of the assumptions that 

Dr. Kessler made about the data that he analyzed? 

A. No. 

Q. Did you verify the documents that Dr. Kessler reviewed 

actually show what he says they show? 

A. Not beyond what I just told you. 

(Id.) Similarly, even if Dr. Streiff wanted to review the underlying documents, he did not 

have access to them: 

Q. You never actually pulled [the] underlying documents? 

A. True. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 4 of 13
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Q. Okay. Did you independently assess the reliability of 

the underlying data that Dr. Kessler relied on? 

A. I couldn’t do that. 

*** 

Q. Okay. Did you verify the documents that Dr. Kessler 

reviewed actually showed what he says they showed? 

A. I – Again, I, I saw, read the report. I don’t have the, the 

documents it was based on. 

(Mot. Ex. C, Streiff Dep., 307:22 – 308:20.) In other words, the only document that the 

Doctors properly verified is the Asch article, a published version of the Recovery Filter 

clinical study. That one document cannot support any of the opinions copied from Dr. 

Kessler’s report which include all the topics covered by Dr. Kessler, including regulatory 

disclosures and internal design, testing, and risk assessments. 

And, in any event, the Doctors do not have the expertise to reliably verify Dr. 

Kessler’s findings. The Doctors have no regulatory experience and are not familiar with 

the types of documents that Dr. Kessler relied upon to form his opinions or his methods. 

(Mot. Ex. C, Streiff Dep. 98:13 – 101:24; Mot. Ex. D, Garcia Dep. 83:16 – 85:12.) (See 

also, July 12, 2017, Deposition of Michael Streiff, at 277:10 – 278:17, attached as Exhibit 

A (testifying that he is not basing these opinions “on any particular regulation, standard, 

or law” and that they are “[a]ll personal opinions based on reading the Kessler report.”)) 

As a result, the Doctors are not qualified to evaluate Dr. Kessler’s opinions, and did not 

apply any reliable methodology or relevant experience to evaluating Dr. Kessler’s 

regulatory opinions. These opinions should be excluded because the Doctors are merely a 

conduit for Dr. Kessler’s opinions, and the Doctors did not independently evaluate the 

underlying data. 

B. The Court Should Exclude Opinions On Physician Expectations and 

Corporate Conduct. 

The Doctors’ physician expectations opinions fall into two categories. First, that 

“manufacturers, like Bard, [should] continuously apprise the clinicians who order and 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 5 of 13
- 6 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

implant IVC filters about their safety profile, performance characteristics, design 

problems, and internal risk assessments.” (Pl. Br. at 4 (citing the Doctors’ expert report).) 

In other words, Plaintiffs’ argue that the Doctors should be able to opine that reasonable 

physicians expect to be told about the content of Dr. Kessler’s report. Second, the Doctors 

opine that “questions remain as to whether [IVC filters generally] are effective, but 

concede that IVC filters should be implanted in patients with “acute venous 

thromboembolism with a contraindication to anticoagulation.” (Mot. Ex. A, Rep., at p. 6.) 

In other words, Plaintiffs argue that the Doctors should be able to opine that reasonable 

physicians expect to be warned that filters are overprescribed. 

1. The Doctors’ Lack Qualifications For Their “Continuous 

Appraisal” Opinion, And Do Not Use Reliable Methodology. 

Plaintiffs argue that the Doctors can opine on physician expectations for “clinicians 

who order and implant IVC filters” because this is a variation of the medical standard of 

care. Plaintiffs offer no legal basis for extending a reasonable physician standard, which is 

a required element of a medical malpractice claim, to a products liability claim in which 

the manufacturer’s conduct, not the physician’s, is at issue. The only authority relied on 

by Plaintiffs for such an expansion is Saint Alphonsus Med. Ctr. - Nampa, Inc. v. St. 

Luke's Health Sys., Ltd., No. 1:12-CV-00560-BLW, 2014 WL 407446 (D. Idaho Jan. 24, 

2014). But, Saint Alphonsus was an antitrust case addressing whether all physicians 

needed access to a shared electronic medical record system, and has nothing to do with the 

issues at hand.3 And, even if this did somehow relate to a medical standard of care, 

Plaintiffs did not address the fact that neither of the Doctors “order [or] implant IVC 

filters.” (Mot. 5-6.) 

3

 Plaintiffs also cite Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 2010) for the generic 

proposition that an expert’s opinion may be admitted when the expert adequately 

explained how he based his opinions on his experience, and used “the ordinary 

methodology of evidence-based medicine” to develop his opinion. This is also 

inapplicable to the Doctors’ specific opinions, particularly because they opine that Bard 

should have disclosed internal company documents. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 6 of 13
- 7 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Second, and most critically, Plaintiffs argue against a straw man of whether 

physician expectations regarding the use of Bard’s filters is relevant. Bard argued a totally 

different issue: that, under the guise of “physician expectations,” the Doctors intend to 

offer a corporate conduct opinion that Bard withheld information from physicians and the 

FDA based solely on their review of Dr. Kessler’s report. This information, based on 

documents such as confidential regulatory filings as part of the 510(k) process, internal 

emails and memoranda, draft bench testing documents, draft PowerPoint presentations, 

and other documents that physicians never review or rely on, are never publicly disclosed 

by any manufacturer. In other words, the Doctors intend to opine on matters wholly 

unrelated to the plain meaning of “physician expectations” and far outside the scope of 

their expertise. Indeed, Plaintiffs concede that the Doctors “used Dr. Kessler’s opinions to 

further demonstrate not only that evidence of IVC filters’ efficacy does not exist, but that 

Bard was aware of this fact.” (Pl. Br. at 9.) 

Courts in this circuit have held that “it is insufficient for an expert to simply rely on 

or parrot another expert’s report prepared solely for litigation.” Crescenta Valley Water 

Dist. v. Exxon Mobile Corp., No. CV 07-2630-JST (ANX), 2013 WL 12120533, at *2 

(C.D. Cal. Mar. 14, 2013). “Moreover, more scrutiny will be given to an expert’s reliance 

on the information or analysis of another expert where the other expert opinions were 

developed for the purpose of litigation.” In re Toyota Motor Corp. Unintended 

Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 978 F. Supp. 2d 1053, 1066 

(C.D. Cal. 2013). 

Tracking the opinions contained in Dr. Kessler’s report, the Doctors state that “it is 

critically important that manufacturers of IVC filters continuously apprise the clinicians 

who order and implant IVC filters about their safety profile, performance characteristics, 

design problems, and internal risk assessments.” (Mot. Ex. A, Rep., at pp. 6-7.) Plaintiffs 

argue that this is based on the Doctors’ clinical experience, even though these categories 

of information are non-clinical. Moreover, the Doctors testified that this statement, 

referring to internal testing and quality assurance documents, was based solely on their 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 7 of 13
- 8 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

personal opinions after reading Dr. Kessler’s report. (Ex. A, Streiff Dep., at 277:10 – 

278:17 (testifying that he is not basing these opinions “on any particular regulation, 

standard, or law” and that they are “[a]ll personal opinions based on reading the Kessler 

report.”)); (Mot. Ex. C, Streiff Dep. 274:23 – 277:5 (testifying that “that’s not from 

literature. That’s from Dr. Kessler’s report”); Mot. Ex. D, Garcia Dep. 193:6-9 (testifying 

“this is a statement that could apply to the manufacturer of any device or medication that’s 

going to be prescribed or deployed by a treating physician”).) In other words, the Doctors’ 

opinion is that Bard should have disclosed what Dr. Kessler says Bard should have 

disclosed to physicians. For the same reasons that the Doctors cannot be a conduit for Dr. 

Kessler’s opinions, such as failing to independently evaluate Dr. Kessler’s opinions, this 

“physician expectations” opinion should be excluded. 

2. The Doctors’ General IVC Filter Efficacy Opinion Lacks 

Relevance And Is Unhelpful to the Jury. 

The Doctors also state under the “Physician Expectations” section of their report 

that “questions remain as to whether [IVC filters generally] are effective.” (Mot. Ex. A, 

Rep., at pp. 6.) Bard agrees that in the proper context, evidence regarding the efficacy of 

IVC filters generally would be admissible. But, Plaintiffs argue a different issue: that Bard 

should have warned physicians regarding an alleged lack of efficacy of all IVC filters. (Pl. 

Br. at 9.) Plaintiffs do not explain how this opinion, which has nothing to do with 

physicians’ expectations regarding Bard’s filters, is relevant to their warning claim or 

helpful to the jury. See e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 580 

(1993) (holding that Rule 702 “demand[s] a valid scientific connection to the pertinent 

inquiry as a precondition to admissibility”). Indeed, it is unclear what specific warning the 

Plaintiffs propose should have been added regarding the efficacy of IVC filters, 

particularly since the FDA assessed the risks and benefits of IVC filters during each 

510(k) review. Moreover, Plaintiffs did not establish that any of the bellwether implanting 

physicians questioned the efficacy of IVC filters. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 8 of 13
- 9 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Aside from the opinions copying Dr. Kessler that should be excluded, the Doctors 

do not provide any manufacturer-specific opinions. (June 21, 2017, Deposition of David 

Garcia, at 44:16 – 46:10, attached as Exhibit B (testifying that the Doctors’ incorporation 

of Dr. Kessler’s opinions is the only portion that compares different manufacturers’ filters 

and agreeing that the rest of the general points in the report are “copied and pasted in the 

Cook [filter litigation] report” and applicable to IVC filters generally)). Indeed, the 

Doctors do not even opine that all IVC filters are ineffective; only that they are 

overprescribed. (Mot. Ex. A, Rep., at p. 6 (acknowledging that “[t]he existing literature 

supports the use of vena cava filters in one setting: acute venous thromboembolism with a 

contraindication to anticoagulation”).) As a result, all of the Doctors’ physician 

expectations opinions should be excluded. See e.g., Johnson v. Wyeth LLC, No. CV 10-

02690-PHX-FJM, 2012 WL 1150857, at *3 (D. Ariz. Apr. 5, 2012) (“[P]laintiff has not 

presented any evidence suggesting that [the prescribing physician] was ever exposed to 

Wyeth’s marketing efforts. Without a link between Wyeth’s marketing and plaintiff’s 

prescribing doctor, Dr. Hollon’s opinions about the subtle effects of marketing on 

prescribing practices are irrelevant.”); In re Gadolinium-Based Contrast Agents Prod. 

Liab. Litig., No. 1:08 GD 50000, 2010 WL 5173568, at *6 (N.D. Ohio June 18, 2010), 

aff'd sub nom. Decker v. GE Healthcare Inc., 770 F.3d 378 (6th Cir. 2014) (“A generic 

expert testifying at length about how NSF is diagnosed and how other conditions, such as 

diabetes, complicates NSF diagnosis is not relevant unless the particular plaintiff has 

diabetes and a case-specific expert testifies that the plaintiff does not have NSF. In that 

case, the generic expert’s testimony would be superfluous.”). 

C. Dr. Garcia Did Not Use Reliable Methodology or Analysis for JonesSpecific Opinions. 

Plaintiffs concede that Dr. Garcia based his opinion on his observations of whole

IVC filters promoting thrombosis (Pl. Br. at 9), but do not address Bard’s argument that 

Dr. Garcia provides no basis or methodology to extrapolate an entire filter causing 

thrombosis to a single strut fragment causing thrombosis. “District court judges are to 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 9 of 13
- 10 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

consider not only (1) whether the method has gained general acceptance in the relevant 

scientific community, but also (2) whether the method has been peer-reviewed, (3) 

whether the method ‘can be (and has been) tested,’ and (4) whether there is a ‘known or 

potential rate of error.’” Lust By & Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 

594, 597 (9th Cir. 1996) (citation omitted). The fractured strut in Plaintiff Jones’ case is 

less than nine percent of the material of a whole filter (the Eclipse has 12 struts total), is a 

different shape than a whole filter, and is located in a different artery of the body with 

different blood flow. 

Plaintiffs cannot argue this opinion is reliable based on Dr. Garcia’s experience when Dr. 

Garcia has never seen a thrombus caused by a filter strut in his personal experience or in 

the medical literature. (Mot. Ex. D, Garcia Dep. at 225:24 – 228:14.) Moreover, he 

“do[es] [no]t have any evidence” that the size of the foreign body affects whether it will 

cause thrombosis. (Id.) In other words, Dr. Garcia provides no scientific basis that a single 

strut of a filter can cause thrombosis. This is precisely the type of “junk science” that 

Daubert and Rule 702 were designed to keep from reaching a jury. Kennedy v. Collagen 

Corp., 161 F.3d 1226, 1229 (9th Cir. 1998) (“To claim that such inert [collagen medical 

device] objects may cause lupus surely would be ‘junk science.’”); cf. Messick v. Novartis 

Pharm. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014) (“While the district court must act as a 

gatekeeper to exclude ‘junk science’ under Daubert, Federal Rule of Evidence 702(a) 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 10 of 13
- 11 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

includes within its scope all evidence that would ‘help the trier of fact ... to determine a 

fact in issue.’ A doctor using a differential diagnosis grounded in significant clinical 

experience and examination of medical records and literature can certainly aid the trier of 

fact and cannot be considered to be offering ‘junk science.’”). Finally, this opinion that a 

single strut can promote thrombosis is another generic IVC filter opinion that is unhelpful 

due to its lack of specificity to Bard’s IVC filters (and inappropriate for a “case-specific” 

opinion). 

Lastly, Bard argued that Dr. Garcia’s opinion that Plaintiff Jones should be 

anticoagulated should be excluded because he did not have an understanding of her 

medical condition, did not recall any of the relevant facts of her medical history during his 

deposition, and could not testify one way or the other, contrary to his report, that Plaintiff 

Jones should receive anticoagulation. Plaintiffs’ response is merely that differing medical 

opinions should be submitted to the jury. (Pl. Br. at 10-11.) However, this is not an issue 

of differing medical opinions. This is an issue of Dr. Garcia’s failure to reliably review 

Plaintiff Jones’ medical records and prepare a methodologically sound treatment plan. Dr. 

Garcia admitted that “active GI bleeding would be a reason you – that one has to withhold 

anticoagulation, at least until the cause of the bleeding is sorted out and it’s treated,” but 

he did not “remember the specific outcome” in Plaintiff Jones’ case. (Mot. Ex. D, Garcia 

Dep. at 222:14 – 223:3.) Even Plaintiff Jones’ other medical expert, Dr. Muehrcke, 

admitted that Plaintiff Jones is contraindicated and cannot be given anticoagulation. (July 

24, 2017, Deposition of Derek Muehrcke, at 136:20-23, attached as Exhibit C.) All other 

experts are in agreement, besides Dr. Garcia who could not recall Plaintiff Jones’ medical 

history, that Plaintiff Jones is contraindicated for anticoagulation. As a result, all of Dr. 

Garcia’s case-specific opinions should be excluded. 

CONCLUSION 

The Doctors’ opinions based on their brief review of Dr. Kessler’s report, including 

their opinions regarding physician expectations, are not only inadmissible under Rule 702, 

but are also unhelpful and unreliable under Daubert. And, Dr. Garcia’s opinions in 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 11 of 13
- 12 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Plaintiff Jones’ case lack any scientific support or methodology. Accordingly, these 

opinions should be excluded in their entirety. 

DATED 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 (#005867) 

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. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 12 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

N

els

o

n

M

ullin

s

Rile

y

&

S

c

a

rb

o

r

o

u

g

h

L.L.P.

201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CERTIFICATE OF SERVICE 

I hereby certify that October 18, 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. 

Case 2:15-md-02641-DGC Document 8229 Filed 10/18/17 Page 13 of 13