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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

May 3, 2018

IN RE Bard IVC Filters Products Liability Litigation,
C. R. Bard, Inc., a New Jersey corporation; and Bard Peripheral Vascular, Inc., an Arizona corporation, Defendants. Doris Jones, an individual, Plaintiff,


          David G. Campbell United States District Judge.

         The 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.

         I. Background.

         In 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.

         Plaintiff 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.

         II. Discussion.

         A. Plaintiff's MILs Nos. 1-3 (Other Medical Issues).

         Plaintiff 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.

         1. Anemia, Hypertension, B12 Deficiency, and Prescriptions.

         When 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.

         Defendants 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 conditions.

         Evidence 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).

         Defendants 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 defense.

         On a 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.

         2. Use of NSAIDs and March 2016 Treatment from Dr. Taylor.

         Plaintiff 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 ...

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