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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

August 17, 2018

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

          ORDER

          David G. Campbell Senior 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 have received implants of Bard IVC filters and claim that they are defective and have caused Plaintiffs to suffer serious injury or death.

         One of 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 motion.

         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. 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 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. Plaintiff Carol Kruse.

         Plaintiff 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.

         Plaintiff filed suit against Bard on April 6, 2015. She asserts various claims under Nebraska law.[1] 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 complaint).[2]

         Defendants 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 limitations grounds.[3]

         III. Summary Judgment Standard.

         A party 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.

         IV. Discussion.

         A. Nebraska's Statute of Limitations and Discovery Rule.

         Under 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).

         Nebraska 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).

         B. Plaintiff's Claims Are Time Barred Under ...


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