United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
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.
MIL 2 - Ms. Tinlin's IVC Size.
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.
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.
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.
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.
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”).
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
MIL 3 - Unrelated Medical Conditions.
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
• Sjogren's syndrome .Hypertension
.Uterine and rectal prolapse
• Fibromyalgia and rheumatoid arthritis
• Pernicious anemia
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
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.
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