United States District Court, D. Arizona
G. Campbell United States District Judge.
case brought by Plaintiff Doris Jones has been selected as
one of several bellwether cases and is set for trial this
month. The parties have filed various motions in limine
(“MIL”) in advance of trial. This order will rule
on those motions.
August 2010, before gastrointestinal surgery, Plaintiff was
implanted with a Bard Eclipse filter due to recurrent deep
vein thrombosis. Five years later, Plaintiff went to the
emergency room with complaints of lightheadedness and arm
pain. A chest scan revealed a fractured filter limb that had
embolized in her right pulmonary artery. The filter was
removed, but the fractured filter limb remains in place.
alleges that Bard filters are more dangerous than other IVC
filters because they have higher risks of complications,
including fracture. Plaintiff further alleges that Bard
failed to warn physicians and patients about these higher
risks. Plaintiff asserts various state law claims under
Georgia law. The following claims remain for trial: design
defect, failure to warn, and punitive damages. See
Docs. 10404, 10732.
Plaintiff's MILs Nos. 1-3 (Other Medical
has filed three motions seeking to exclude evidence of
purported unrelated medical issues under Rules 402 and 403:
(1) her anemia, hypertension, and vitamin B12 deficiency, and
her alleged failure to take prescribed medications for those
conditions; (2) her use of nonsteroidal anti-inflammatory
drugs (“NSAIDs”) and failure to follow medical
advice against the use of those drugs; and (3) her treatment
from Dr. Colleen Taylor for gastric bleeding in March 2016.
Docs. 10813-15. Plaintiff contends that this evidence is not
relevant to any issue in this case, and that any probative
value is substantially outweighed by the danger of unfair
prejudice and juror confusion.
Anemia, Hypertension, B12 Deficiency, and
doctors discovered in April 2015 that Plaintiff's Eclipse
filter had fractured, they also found that she was anemic,
had a B12 deficiency, and suffered from hypertension. Doc.
10814 at 2. Dr. Kristen Nelson, an interventional
radiologist, took charge of Plaintiff's care for the
fractured filter, and Dr. David Chodos prescribed medications
for Plaintiff's other conditions. Id. Plaintiff
contends that evidence concerning those other conditions and
her inability to obtain the prescriptions due to her limited
access to healthcare is irrelevant and unfairly prejudicial.
Id. at 2-3.
contend that Plaintiff's anemia is relevant to the issues
of causation and damages, but make no such argument with
respect her hypertension and B12 deficiency. Doc. 10905 at
1-2. The Court will grant the motion in
limine on her hypertension and B12 deficiency. Defendants are
precluded from presenting evidence or argument about
Plaintiff's hypertension and B12 deficiency and her
alleged failure to take prescribed medications for those
of Plaintiff's anemia is relevant to causation and
damages. Under Georgia law, “evidence concerning a
plaintiff's ‘other' injuries may be admissible
to show that the injuries currently at issue are not the
result of the defendant's alleged negligence.”
Lindsey v. Turner, 631 S.E.2d 789, 791 (Ga.Ct.App.
2006) (citing Wages v. Sibran, Inc., 318 S.E.2d 679,
680 (Ga.Ct.App. 1984)); see Kilday v. Kennestone
Physicians Ctr., L.P., 676 S.E.2d 271, 273 (Ga.Ct.App.
2009) (same). In this case, Plaintiff claims that her
tiredness is related to the Eclipse filter fragment lodged in
her pulmonary artery. Doc. 10900-1 at 3. But Dr. Chodos has
testified that one of the primary symptoms of anemia is
fatigue (Doc. 10905-4 at 3), and Plaintiff complained of
fatigue even before she received the filter implant (Doc.
10902-2 at 2). Given this evidence, Plaintiff's anemia is
relevant to whether the filter fragment is a proximate cause
of her fatigue, and the amount of any damages award based on
fatigue. The Court will deny the motion in
limine with respect to evidence of Plaintiff's anemia.
See Lindsey, 631 S.E.2d at 791; Levine v.
Choi, 522 S.E.2d 673, 674 (Ga.Ct.App. 1999)
(“Evidence that plaintiff's injuries were
pre-existing is sufficient for a jury to find the accident
did not proximately cause the injuries.”);
Blosfield v. Hall, 511 S.E.2d 196, 197-99
(Ga.Ct.App. 1999) (affirming judgment for the defendant on a
negligence claim where he presented evidence that the
plaintiff's injuries were not caused by the accident).
also assert that evidence of Plaintiff's failure to take
prescribed medication for her anemia is relevant to
causation. Doc. 10905 at 3. The Court agrees, but, as noted
below, will allow evidence of Plaintiff's inability to
pay for the medication if Defendants pursue this line of
related matter, Defendants do not assert a comparative
negligence defense. Docs. 10930, 10932; see Ga.
Code. Ann. § 51-12-33(a); Ga. Pattern Jury Instruction
§ 60.141. Defendants do request a jury instruction on
the duty to mitigate damages, but they do not raise this as a
disputed issue in the proposed pretrial order. Docs. 10930-4
at 13, 10932 at 12-13. The parties should be prepared at the
final pretrial conference to discuss whether failure to
mitigate damages will be asserted in this case.
Use of NSAIDs and March 2016 Treatment from Dr.
suffers from migraine headaches. Doc. 10813 at 2. Against the
advice of her doctors, she treats the headaches with NSAIDs
such as Ibuprophen and “Goody's” headache
powder. Id. Plaintiff also suffers from ulcers and
gastric bleeding, and the use of NSAIDs exacerbates this
condition. Id. In March 2016, Plaintiff was treated