United States District Court, D. Arizona
G. Campbell United States District Judge.
multidistrict litigation proceeding (“MDL”)
involves thousands of personal injury cases brought against
Defendants C. R. Bard, Inc. and Bard Peripheral Vascular,
Inc. (collectively, “Bard”). Bard manufactures
and markets medical devices, including inferior vena cava
(“IVC”) filters. The MDL Plaintiffs received
implants of Bard IVC filters and claim that they are
defective and have caused serious injury or death.
the MDL cases is brought by Plaintiffs Lisa and Mark Hyde.
Mrs. Hyde received a Bard filter seven years ago. Her case
has been selected as one of several bellwether cases and is
set for trial in September 2018. Defendants have filed a
motion for partial summary judgment. Doc. 7359. The motion is
fully briefed, and the parties agree that oral argument is
not necessary. The Court will grant the motion in part and
deny it in part.
is a large vein that returns blood to the heart from the
lower body. An IVC filter is a device implanted in the IVC to
catch blood clots before they reach the heart and lungs. This
MDL involves multiple versions of Bard IVC filters - the
Recovery, G2, G2X, Eclipse, Meridian, and Denali. They are
spider-shaped devices that have multiple limbs fanning out
from a cone-shaped head. The limbs consist of legs with
elastic hooks that attach to the IVC wall and curved arms to
catch or break up blood clots. Each of these filters is a
variation of its predecessor.
Plaintiffs allege that Bard filters are more dangerous than
other IVC filters because they have higher risks of tilting,
perforating the IVC, or fracturing and migrating to vital
organs. Plaintiffs further allege that Bard failed to warn
patients and physicians about these higher risks. Defendants
dispute these allegations, contending that Bard filters are
safe and effective, that their complication rates are low and
comparable to those of other IVC filters, and that the
medical community is aware of the risks associated with IVC
The Hyde Plaintiffs.
following facts are not disputed for summary judgment
purposes. Plaintiff Lisa Hyde has a history of deep vein
thrombosis and pulmonary emboli. On February 25, 2011, she
received a Bard G2X filter while living in
Wisconsin. Dr. David Henry implanted the filter
without incident. In May 2014, after Mrs. Hyde and her
husband had moved to Nevada, a CT scan showed that the filter
had tilted, perforated the IVC wall, and fractured, with one
strut lodged in the right ventricle of her heart. The filter
and fractured strut were removed in August 2014.
Hyde and her husband assert various claims against Bard:
failure to warn (Counts II and VII), design defects (Counts
III and IV), failure to recall (Count VI), misrepresentation
and concealment (Counts VIII, XII, and XIII), negligence per
se (Count IX), breach of implied warranty (Count XI),
fraudulent trade practices (Count XIV), loss of consortium
(Count XV), and punitive damages. See Doc. 364
(master complaint); Doc. 1, Case No. CV-16-00893 (short-form
seek summary judgment on the claims for strict liability
design defect, failure to warn, failure to recall,
misrepresentation and fraud, and breach of implied warranty.
Doc. 7359 at 2-4. Plaintiffs concede that summary judgment is
proper on the failure to recall and implied warranty claims.
Doc. 7952 at 2 n.2. The Court will deny summary judgment on
the strict liability design defect claim, but otherwise will
grant Defendants' motion. Defendants do not seek summary
judgment on claims for negligent design (Counts IV),
negligence per se (Count IX), loss of consortium (Count XV),
or punitive damages. These claims, plus strict liability
design defect, remain in the case.
Choice of Law.
Wisconsin is the forum where venue would be proper absent
this MDL, the parties agree that Wisconsin's
conflict-of-law rules should be used to determine the
governing law in this case. Docs. 7359 at 5, 7952 at 3;
see Doc. 1 at 2, Case No. CV-16-00893 (identifying
the Eastern District of Wisconsin as the forum court);
see Love v. Blue Cross & Blue Shield of Ga.,
Inc., 439 F.Supp.2d 891, 892 (E.D. Wis. 2006) (federal
courts “apply the choice-of-law rules of the forum
state to determine the applicable substantive law”).
Defendants argue that Wisconsin law applies. Doc. 7359 at 6.
Plaintiffs argue that Nevada law applies. Doc. 7952 at
employs a two-step choice-of-law analysis. Step one considers
whether “‘the contacts of one state to the facts
of the case are so obviously limited and minimal that
application of that state's law constitutes officious
intermeddling.'” NCR Corp. v. Transp. Ins.
Co., 823 N.W.2d 532, 535 (Wis. Ct. App. 2012) (quoting
Beloit Liquidating Trust v. Grade, 677 N.W.2d 298,
307 (Wis. 2004)). If neither state's contacts are
insignificant, step two considers several
“choice-influencing” factors. Id. at 536
(citing Drinkwater v. Am. Fam. Mut. Ins. Co., 714
N.W.2d 568, 576 (Wis. 2006); Heath v. Zellmer, 151
N.W.2d 664, 672 (Wis. 1967)).
Step One - State Contacts.
evaluating the contacts with each state, the Court must
consider the place of contracting, if any, the place of
negotiation of any contract, the place of performance, the
location of the subject matter, and the domicile, residence,
nationality, place of incorporation, and place of business of
the parties. See NCR Corp., 823 N.W.2d at 535
(citing Haines v. Mid-Century Ins. Co., 177 N.W.2d
328 (Wis. 1970)); Restatement (Second) of Conflicts §
188. Where tort claims are made, courts also consider the
locations of the tortious conduct and the injury. See
Id. at 535-36 & n.2 (citing Drinkwater, 714
N.W.2d at 576; Beloit, 677 N.W.2d at 307;
Restatement § 145).
case, the places of contracting, negotiation, and performance
are not relevant because the parties never entered into a
contract. Other factors are relevant. Plaintiffs were
residents of Wisconsin when Mrs. Hyde received her Bard
filter (Docs. 7950 ¶ 151, 7953 ¶¶ 1-2), her
medical conditions leading to the filter implant occurred in
Wisconsin (id.), and the filter was sold in
Wisconsin and implanted by a Wisconsin doctor (Doc. 7953
¶¶ 4, 17). On the other hand, Plaintiffs moved to
Nevada after Mrs. Hyde received her filter, the filter's
failure and resulting injuries were discovered in Nevada, and
Plaintiffs still reside there. Doc. 7950 ¶ 156.
Considering all of these facts, the Court finds that both
Wisconsin and Nevada have significant contacts with this
there is a weak presumption in favor of applying the forum
law, the nonforum state's contacts must be clearly more
significant for that state to prevail under this first
step.” NCR Corp., 823 N.W.2d at 535 (citing
Drinkwater, 714 N.W.2d at 576); see State Farm
Mut. Auto. Ins. Co. v. Gillette, 641 N.W.2d 662, 676
(Wis. 2002); In re Jafari, 569 F.3d 644, 649 (7th
Cir. 2009). Nevada's contacts with this case are not
clearly more significant than Wisconsin's, but neither
are they “so obviously limited and minimal” that
application of Nevada law would constitute officious
intermeddling. Beloit, 677 N.W.2d at 307; see
Drinkwater, 714 N.W.2d at 576-77 (finding Iowa's
contacts to be significant but not greater than
Wisconsin's where the accident and injuries occurred in
Wisconsin and the insurance contract was formed in Iowa);
Love, 439 F.Supp.2d at 892 (application of the
foreign state's law “only constitutes
‘officious intermeddling' if the other state is
truly of remote connection to the issues in the case”).
As a result, the Court must proceed to step two of the
choice-of-law inquiry. See In re Jafari, 569 F.3d at
649 (“[I]f it is not clear that the nonforum contacts
are of greater significance, then the court typically
analyzes as a tie-breaker the five choice-influencing factors
developed in Heath[.]”).
cite NRC Corp. and argue that great weight should be
given to the location of the tortious conduct and the
location of the injury. Doc. 7952 at 5. But the court in
NRC Corp. did not find these two factors to be
“qualitatively stronger” on their own; it found
them stronger on the facts of the case before it because they
were “the only factors that conclusively weigh[ed] in
favor of either [state's] law[.]” 823 N.W.2d at
538. Here, there are several significant contacts with Nevada
and Wisconsin. Moreover, Plaintiffs do not contend that the
tortious conduct in this case occurred in Nevada.
reliance on Drinkwater fares no better. Doc. 7952 at
5. The accident and injury in that case occurred in
Wisconsin, but the court nonetheless declined to resolve the
choice-of-law issue at step one because, as here, the
contacts with each state were significant. 714 N.W.2d at 577
(“Iowa's contacts are more than minimal and
limited. We therefore turn to apply the five
choice-influencing factors.” (citation omitted)).
claim that the district court in Johnson v. Mylan
Inc., 107 F.Supp.3d 967 (E.D. Wis. 2015), applied the
state-contacts analysis and determined that Wisconsin law
should apply because the illness, treatment, and death
occurred in that state. Doc. 7952 at 5. To the contrary, no
choice-of-law analysis was needed in Johnson because
the parties agreed that Wisconsin law applied. 107 F.Supp.3d
at 970. Moreover, the court made clear that “the law of
the forum state governs a tort case unless it is clear that
nonforum contacts are more significant.” Id.
(citing Gillette, 641 N.W.2d at 675-76); see
Schultz, 2013 WL 4959007, at *4 (applying the law of
Wisconsin where the tortious conduct occurred even though the
decedent died in Florida and his widow lived there).
Step Two - Choice-Influencing Factors.
two considers five factors: (1) predictability of results,
(2) maintenance of interstate and international order, (3)
simplification of the judicial task, (4) advancement of the
forum state's interests, and (5) application of the
better rule of law. See NCR Corp., 823 N.W.2d at 536
(citing Drinkwater, 714 N.W.2d at 576;
Heath, 151 N.W.2d at 672). “The appropriate
law, unless the above factors clearly displace it, is the law
of the forum.” Sentry Ins. v. Novelty, Inc.,
No. 09-CV-355-SLC, 2009 WL 5087688, at *5 (W.D. Wis. Dec. 17,
Predictability of Results.
factor concerns the parties' expectations as to the legal
consequences of the conduct that led them to court. See
Drinkwater, 714 N.W.2d at 577. Bard's interactions
with the physician who implanted Mrs. Hyde's filter
occurred in Wisconsin, Bard sold the filter to a Wisconsin
hospital, and the filter was implanted while Mrs. Hyde lived
in Wisconsin. Doc. 7953 ¶¶ 1-2, 4-5, 17. It was
thus reasonable for Bard to expect that Wisconsin law would
apply to any product liability claims arising from the
filter's use. See Beloit, 677 N.W.2d at 308
(corporations are “on notice that, if they choose to
transact business in this state, they will be subject to
Wisconsin law”); Schultz v. Glidden Co., No.
08-C-919, 2013 WL 4959007, at *4 (E.D. Wis. Sept. 13, 2013)
(“[Defendant] purposefully marketed and sold its
products to a company doing business in Wisconsin, so the
application of Wisconsin law could not have been
unexpected.”); Brooks v. Gen. Cas. Co. of
Wis., No. 06-C-0996, 2007 WL 4305577, at *4 (E.D. Wis.
Dec. 7, 2007) (“[D]efendants, in the course of doing
business in Wisconsin, had no reason to expect that the legal
consequence of conduct undertaken there would be wrongful
death damages that exceed the limitations set by Wisconsin
law.”). Conversely, the parties could not reasonably
have expected Nevada law to apply to filter-related claims
because Plaintiffs' move to Nevada for employment reasons
was a “fortuitous happenstance, not a predictable
result.” Schultz, 2013 WL 4959007, at *4. This
factor favors application of Wisconsin law.
Maintenance of Interstate Order.
factor is a variation of the “officious
intermeddling” test applied at step one. See
Extrusion Dies Indus., LLC v. Cloeren Inc., No.
08-CV-323-SLC, 2008 WL 4401219, at *4 (W.D. Wis. Sept. 24,
2008). It requires that “a jurisdiction which is
minimally concerned defer to a jurisdiction that is
substantially concerned.” Drinkwater, 714
N.W.2d at 577; see Heath, 151 N.W.2d at 672. Here,
as explained above, “both jurisdictions are more than
minimally concerned.” Drinkwater, 714 N.W.2d
at 577; see also Love, 439 F.Supp.2d at 895
(application of one state's law over another's would
not upset interstate order where neither jurisdiction is
minimally concerned nor is there an indication of forum
shopping). This factor is neutral.
Simplification of ...