In re Bard IVC Filters Products Liability Litigation

          ORDER

          David G. Campbell United States District Judge.

         This 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.

         One of 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.

         I. Background.

         The IVC 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.

         The MDL 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 filters.

         II. The Hyde Plaintiffs.

         The 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.^[1] 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.

         Mrs. 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 complaint).^[2]

         Defendants 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.

         III. Choice of Law.

         Because 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 3.^[3]

         Wisconsin 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)).

         A. Step One - State Contacts.

         In 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).

         In this 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 case.

         “Because 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[.]”).

         Plaintiffs 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.

         Plaintiffs' 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)).

         Plaintiffs 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).

         B. Step Two - Choice-Influencing Factors.

         Step 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, 2009).

         1. Predictability of Results.

         This 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.

         2. Maintenance of Interstate Order.

         This 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.

         3. Simplification of ...