United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
G. CAMPBELL, UNITED STATES DISTRICT JUDGE.
multidistrict litigation (“MDL”) involves
thousands of personal injury cases related to inferior vena
cava (“IVC”) filters manufactured and marketed by
Defendants C. R. Bard, Inc. and Bard Peripheral Vascular,
Inc. (collectively, “Bard”). Bard has filed a
motion to exclude the opinions of Dr. Derek Muehrcke. Doc.
7304. The motion is fully briefed, and the Court heard
arguments on January 19, 2018. The Court will grant the
motion in part.
is a large vein that returns blood to the heart from the
lower body. IVC filters are small metal devices implanted in
the IVC to catch blood clots before they reach the heart and
lungs. This MDL involves seven different versions of Bard IVC
filters - the Recovery, G2, G2 Express, G2X, Eclipse,
Meridian, and Denali.
Plaintiff in this MDL was implanted with a Bard IVC filter
and claims it is defective and has caused serious injury or
death. Plaintiffs allege that Bard filters tilt, perforate
the IVC, or fracture and migrate to neighboring organs.
Plaintiffs claim that Bard filters are more dangerous than
other IVC filters, and that Bard failed to warn about the
higher risks. Plaintiffs assert a host of state law claims,
including manufacturing and design defects, failure to warn,
breach of warranty, and consumer fraud and unfair trade
practices. Doc. 303-1. Bard disputes Plaintiffs'
allegations, contending that overall complication rates for
Bard filters are comparable to those of other IVC filters and
that the medical community is aware of the risks associated
with IVC filters.
parties intend to use various expert witnesses at trial,
including medical professionals. Plaintiffs have identified
Dr. Muehrcke, a cardiothoracic surgeon, as an expert witness
on various issues in each of the five cases selected for
bellwether trials. He has prepared case-specific reports that
share certain opinions in common. Doc. 7307. Defendants ask
the Court to exclude seven categories of opinions: (1) Bard
filters have design defects; (2) adoption of opinions of
other experts; (3) reasonable expectations of physicians
regarding filter performance; (4) Bard filters have an
“unacceptable” risk of caudal migration; (5) Bard
acted unethically in selling its filters; (6) Bard's
state of mind, motive, and intent; and (7) the failure of
Plaintiff Lisa Hyde's filter resulted in an increased
risk for arrhythmias and sudden death, and the need for an
implantable defibrillator. Doc. 7304 at 2. The Court will
address each category.
Rule 702, a qualified expert may testify on the basis of
“scientific, technical, or other specialized
knowledge” if it “will assist the trier of fact
to understand the evidence, ” provided the testimony
rests on “sufficient facts or data” and
“reliable principles and methods, ” and
“the witness has reliably applied the principles and
methods to the facts of the case.” Fed.R.Evid.
702(a)-(d). An expert may be qualified to testify based on
his or her “knowledge, skill, experience, training, or
proponent of expert testimony has the ultimate burden of
showing that the expert is qualified and the proposed
testimony is admissible under Rule 702. See Lust v.
Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir.
1996). The trial court acts as a gatekeeper to assure that
expert testimony “both rests on a reliable foundation
and is relevant to the task at hand.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule
702's requirements, and the court's gatekeeping role,
apply to all expert testimony, not only to scientific
testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999).
Muehrcke is a cardiothoracic surgeon who received his
specialty training at Harvard Medical School and
Massachusetts General Hospital. Doc. 7307 at 2. He serves as
Chief of Cardiothoracic Surgery at Flagler Hospital in St.
Augustine, Florida, and is part of a private medical group
that performs heart surgeries at seven area hospitals.
Id. at 3. He implants or removes nearly 50 IVC
filters per year, and has more than 20 years' experience
treating patients with IVC filters. Id. at 2-3.
argue that Dr. Muehrcke is not qualified to offer design
related opinions because he has never designed or tested an
IVC filter and has no background in engineering, metallurgy,
or materials science. Doc. 7304 at 3. Defendants ask the
Court to exclude this design opinion:
Due to the filters [sic] inadequate design, Ms. Booker's
filter tilted, became embedded in the vena cava, punctured
through the vena cava and surrounding organs and structures,
multiple strut fractures occurred, and filter fragments
embolized to the heart. Specifically, the device's
inadequate migration resistance, and lack of strength and
stability, caused by its weak anchoring hooks and lack of
radial force and inadequate leg span to accommodate vessel
distention were substantial factors in causing this device to
migrate in a caudal direction, tilt, perforate the vena cava,
and fracture. In reaching this opinion, I reviewed Ms.
Booker's medical records and radiology, and performed a
differential diagnosis, and there is no other reasonable
cause for the failures of the filter.
Doc. 7307 at 10. Dr. Muehrcke offers similar opinions in
other bellwether cases. See Docs. 7307-1 at 9
(inadequate migration resistance and lack of strength and
stability caused Plaintiff Hyde's G2 filter to migrate,
tilt, perforate the IVC, and fracture); 7307-2 at 9 (lack of
strength and stability caused Plaintiff Jones's Eclipse
filter to fracture); 7307-3 at 9 (inadequate migration
resistance and ...