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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

April 26, 2019

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

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE

         The parties have filed motions in limine (“MIL”) in advance of the Tinlin bellwether trial. The Court previously ruled on Plaintiffs' MIL 1. Doc. 17285. This order will rule on the remaining motions.

         I. Plaintiffs' MILs.

         A. MIL 2 - Ms. Tinlin's IVC Size.

         The diameter of Ms. Tinlin's inferior vena cava (“IVC”) measured between 28 and 29 mm when she received her Recovery filter. Plaintiffs seek to preclude Defendants from using this evidence to show that Dr. Riebe's decision to implant a Recovery filter constitutes negligence that was a cause of Ms. Tinlin's injuries. Doc. 16578 at 1-2. Plaintiffs contend that the evidence is irrelevant and unfairly prejudicial because Dr. Riebe is not a defendant in the case and no medical malpractice claim is asserted against him. Id. at 2-3.

         Wisconsin law has “established without a doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors.” Connar v. W. Shore Equip. of Milwaukee, Inc., 227 N.W.2d 660, 662 (Wis. 1975); see Heldt v. Nicholson Mfg. Co., 240 N.W.2d 154, 157 (Wis. 1976) (trial court did not err in including the plaintiff's employer in the verdict where the record was replete with evidence of its negligence); Hauboldt v. Union Carbide Corp., 467 N.W.2d 508, 515 (Wis. 1991) (“We have held that in an action for negligence, the jury must be given the opportunity to consider the possible negligence of all persons, whether parties or not, who might have contributed to the total negligence.”) (citing Connar); York v. Nat'l Cont'l Ins., 463 N.W.2d 364, 367 (Wis. Ct. App. 1990) (“If there is evidence of conduct that, if believed by the jury, would constitute negligence on the part of an actor, then that actor should be included in the special verdict.”). The fact that Dr. Riebe is not a party to this case and cannot be found liable does not preclude Defendants from presenting evidence that he was negligent in selecting a Recovery filter for Ms. Tinlin and that this was a cause of her injuries.

         Ms. Tinlin's IVC size also is relevant to the failure to warn claims. The Recovery's instructions for use (“IFU”) cautioned that “[i]f the IVC diameter exceeds 28 mm, the filter must not be inserted into the IVC.” Doc. 16893-1 at 2. Plaintiff claims that Dr. Riebe would have read an IFU that contained an adequate warning and may have changed his decision to use a Recovery for Ms. Tinlin. See Doc. 16893 at 4. Existing warnings in the IFU clearly are relevant.

         In his Tinlin report, Dr. Morris opines that a Recovery filter should not be placed in an IVC larger than 28 mm because this can lead to tilt and migration. Doc. 15081-2 at 16-17, ¶ 1. He further opines that Dr. Riebe's decision to implant a Recovery in Ms. Tinlin fell below the standard of care. Id. Based on Dr. Morris's recent deposition testimony, Plaintiffs contend that he can only speculate that the IVC size and Dr. Riebe's decision to implant a Recovery caused Ms. Tinlin's injuries. Doc. 16748 at 2-3.

         Plaintiff has the burden of proof as to her claimed injuries, and her “medical testimony in meeting such burden cannot be based on mere possibilities.” Hernke v. N. Ins. Co. of N.Y., 122 N.W.2d 395, 399 (Wis. 1963). But in challenging Plaintiff's claim, Defendants are “not required to confine [themselves] to reasonable medical probabilities.” Id. Rather, Defendants “may attempt to weaken the claim of injuries with medical proof which is couched in terms of possibilities.” Id.; see Felde v. Kohnke, 184 N.W.2d 433, 441 (Wis. 1971) (“It is clear that a contrary opinion to that presented by an opposing party may be presented in terms of possibilities[.]”); Roy v. St. Lukes Med. Ctr., 741 N.W.2d 256, 264 (Wis. Ct. App. 2007) (explaining that “a defense expert is allowed to produce evidence of possibilities”).

         Plaintiff will claim that the filter's defective design caused her injuries, and Defendants can respond with Dr. Morris's testimony that her injuries possibly were caused by placement of the filter in an IVC that exceeded 28 mm. Plaintiffs will be free to argue that this is a mere possibility and Dr. Morris's opinions are nothing more than speculation and conjecture. See Id. at 3-5. But the fact that Dr. Morris could not “affirmatively state” the cause of Ms. Tinlin's injuries is no basis for excluding his opinions under Wisconsin law. Doc. 16748 at 3; see Hernke, 122 N.W.2d at 399; Roy, 741 N.W.2d at 264. The motion in limine (Doc. 16578) is denied.[1]

         B. MIL 3 - Unrelated Medical Conditions.

         Plaintiffs seek to exclude evidence concerning certain medical conditions that they claim are unrelated to the injuries caused by the Recovery filter:

• Graves' disease .Surgical resection of the thyroid gland .Hypothyroidism
• Sjogren's syndrome .Hypertension .Uterine and rectal prolapse
• Fibromyalgia and rheumatoid arthritis
• Pernicious anemia

         Doc. 16577 at 1-2. Plaintiffs contend that these conditions are not relevant to any issue in the case and would only mislead the jury, confuse the issues, and waste time. Id. at 3.

         Defendants counter that the conditions carry symptoms that overlap with some of Ms. Tinlin's claimed injuries - future cardiac complications, shortness of breath, back pain, and a weakened trachea. Doc. 16938 at 3. Defendants cite various medical articles purportedly showing the causal connections (id. at 2-5), but it is not clear that the documents will be admissible at trial. Nor do Defendants identify any expert medical testimony they will offer on the issue.

         Under Wisconsin law, however, Defendants may cross-examine Plaintiffs' experts as to whether it is possible that Ms. Tinlin's medical conditions are related to her claimed injuries. See Hernke, 122 N.W.2d at 399. The Court cannot conclude that Ms. Tinlin's medical conditions are ...


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