United States District Court, D. Arizona
G. Campbell Senior 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 have received
implants of Bard IVC filters and claim that they are
defective and have caused Plaintiffs to suffer serious injury
the MDL cases is brought by Plaintiff Carol Kruse, who had a
Bard filter implanted nine years ago. Ms. Kruse's case
has been selected as one of several bellwether cases.
Defendants have filed a motion for summary judgment. Doc.
7341. The motion is fully briefed, and the parties agree that
oral argument is not necessary. The Court will grant the
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. These are
spider-shaped devices that have multiple limbs fanning out
from a cone-shaped head. The limbs consist of legs with 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
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
Plaintiff Carol Kruse.
Kruse has a history of blood clots. Before knee surgery in
July 2009, she had a Bard G2 filter implanted to mitigate the
risk of a pulmonary embolism during or after surgery. Dr.
Shanon Smith implanted the filter without incident. Dr. Smith
attempted to remove the filter on April 7, 2011, but was
unsuccessful because the filter had tilted and perforated the
IVC wall. The filter remains embedded in Plaintiff's IVC.
filed suit against Bard on April 6, 2015. She asserts various
claims under Nebraska law. The following claims remain: failure to
warn (Counts II and VII), design defects (Counts III and IV),
failure to recall (Count VI), misrepresentation (Counts VIII
and XII), negligence per se (Count IX), concealment (Count
XIII), consumer fraud and unfair trade practices (Count XIV),
and punitive damages. See Doc. 364 (master
move for summary judgment on various grounds. Doc. 7348.
Plaintiff opposes the motion. Doc. 8009. For reasons stated
below, the Court will grant summary judgment on statute of
Summary Judgment Standard.
seeking summary judgment “bears the initial
responsibility of informing the court of the basis for its
motion and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Summary judgment is appropriate if the
moving party shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The evidence must be
viewed in the light most favorable to the nonmoving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986), and all justifiable inferences are
drawn in that party's favor because “[c]redibility
determinations, the weighing of evidence, and the drawing of
inferences from the facts are jury functions, ”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). To avoid summary judgment, the factual dispute must
be genuine - that is, the evidence must be sufficient for a
reasonable jury to return a verdict for the nonmoving party.
Anderson, 477 U.S. at 248.
Nebraska's Statute of Limitations and Discovery
Nebraska law, civil actions generally must be brought within
the time period prescribed by the applicable statute of
limitations. Neb. Rev. Stat. § 25-201. Nebraska's
statute of limitations for product liability actions requires
that such actions, other than asbestos-related suits,
“be commenced within four years next after the date on
which the death, injury, or damage complained of
occurs.” Neb. Rev. Stat. § 25-224(1).
courts have adopted a discovery rule for § 25-224(1).
See Condon v. A. H. Robins Co., 349 N.W.2d 622,
623-27 (1984). Under this rule, an injury
“occurs” within the meaning of the statute, and
the limitations period begins to run, when the plaintiff
first “discovers, or in the exercise of reasonable
diligence should have discovered, the existence of [the]
injury[.]” Id. at 627. “Discovery refers
to the fact that one knows of the existence of an injury . .
. and not that one knows who or what may have caused that
injury[.]” Thomas v. Countryside of Hastings,
Inc., 524 N.W.2d 311, 313 (Neb. 1994). Similarly,
“one need not know the full extent of one's damages
before the limitations period begins to run[.]”
Gordon v. Connell, 545 N.W.2d 722, 726 (Neb. 1996).
Plaintiff's Claims Are Time Barred Under ...