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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

April 23, 2019

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. Debra and James Tinlin, a married couple, Plaintiffs,



         Plaintiffs move to exclude certain opinions of Dr. Morris and evidence that Ms. Tinlin's medical care was an intervening cause of injury. Docs. 15077, 16576. The motions are fully briefed. Docs. 15661, 16032, 16890. The parties request oral argument, but it will not aid the Court's decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court will grant the motion to exclude Dr. Morris's opinions and grant in part and deny in part the motion in limine regarding medical care as an intervening cause of injury.

         I. Background.

         On May 7, 2005, Dr. Riebe implanted a Bard Recovery filter in Plaintiff Debra Tinlin's inferior vena cava (“IVC”). Ms. Tinlin had multiple chest scans after the implantation, including one taken by Dr. Haller on April 15, 2008.

         Ms. Tinlin experienced cardiac tamponade on June 10, 2013. A chest scan showed evidence of two fractured Recovery struts in the right ventricle of her heart. Dr. Roitstein performed emergency surgery to drain a large pericardial effusion. The procedure - a subxiphoid pericardial window - involved removing a small piece of the heart sac and inserting a drainage tube through the incision.

         On July 31, 2013, Dr. Kress removed a fractured strut through open heart surgery. A subsequent chest scan revealed multiple fractured struts in the pulmonary arteries. These struts and the filter have not been removed.

         II. Motion to Exclude Dr. Morris's Opinions About Drs. Roitstein and Kress.

         In his case-specific report, Dr. Morris opines that an interventional radiologist could have drained Ms. Tinlin's pericardial effusion through percutaneous placement of a drainage tube. Doc. 15081-2 at 18, ¶ 6. He claims that this procedure “likely would have been performed more expeditiously, with less morbidity and risk than [Dr. Roitstein's] surgical procedure, using moderate sedation rather than general anesthesia.” Id.

         Dr. Morris further opines that the fractured strut Dr. Kress removed potentially could have been retrieved percutaneously by an interventional radiologist, which “might have precluded open heart surgery, with all of its attendant risks and morbidity, including tracheomalacia and epigastric ventral hernia.” Id. at 18-19, ¶ 7. Dr. Morris notes that a chest scan taken two days before the surgery revealed no strut in the heart. Id. He opines that the failure to perform a chest scan immediately before surgery is significant because “it was possible that neither arm fragment was still located in the heart, and therefore, open heart surgery would have been contraindicated.” Id. at 19, ¶ 7.

         Plaintiffs have filed a motion to exclude these opinions, arguing that Dr. Morris is not qualified to opine on the standard of care for cardiothoracic surgeons and his opinions are unreliable and would be unhelpful and confusing to the jury. Doc. 15081-1 at 3-4. Defendants make clear that they are not offering Dr. Morris to opine on the standard of care for the surgeries performed by Drs. Roitstein and Kress, or any related breach. Doc. 15661 at 6, 11. Defendants assert that they are merely “exercising [their] right under Wisconsin law to present expert testimony that may ‘weaken' Plaintiffs' claim of injuries[.]” Id. at 11 (citations omitted).

         Under Wisconsin law, “when a tortfeasor causes an injury to another person who then undergoes unnecessary medical treatment of those injuries despite having exercised ordinary care in selecting her doctor, the tortfeasor is responsible for all of that person's damages arising from any mistaken or unnecessary surgery.” Hanson v. Am. Family Mut. Ins., 716 N.W.2d 866, 871 (Wis. 2006) (citing Butzow v. Wausau Mem'l Hosp., 187 N.W.2d 349, 351-52 (Wis. 1971)). The rule was first announced in Selleck v. City of Janesville, 75 N.W. 975, 976 (Wis. 1898):

The plaintiff is not held responsible for the errors or mistakes of a physician or surgeon in treating an injury received by a defect[, ] providing she exercises ordinary care in procuring the services of such physician. Where one is injured by the negligence of another, . . . if her damages have not been increased by her own subsequent want of ordinary care she will be entitled to recover in consequence of the wrong done, and the full extent of damage, although the physician that she employed omitted to employ the remedies most approved in similar cases, and by reason thereof the damage to the injured party was not diminished as much as it otherwise should have been.

         The Selleck rule remains good law in Wisconsin. See Fouse v. Persons, 259 N.W.2d 92, 95 (Wis. 1977) (“The rule for awarding damages for injuries aggravated by subsequent mistaken medical treatment was established in Selleck . . . and has been followed since.”); Paddock v. United States, No. 16-CV-947, 2018 WL 3696618, at *3 (E.D. Wis. Aug. 3, 2018) (discussing the “long-standing principle set forth in Selleck”); see also Wis Civil-JI 1710 (citing Selleck to support the jury instruction for aggravation of injury because of medical negligence).

         Defendants do not dispute that the surgeries performed by Drs. Roitstein and Kress were undertaken to treat injuries Ms. Tinlin sustained from the Recovery arm fragment in her heart. See Docs. 15081-2 at 6-7, 16952 at 5. Nor do Defendants present any evidence or argument that Ms. Tinlin was negligent in selecting the doctors to perform the surgeries. Thus, even if the surgeries were unnecessary as Dr. Morris ...

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