On July 26, 2018, C.D. Bard, Inc. (“Bard”) obtained some favorable rulings in the Hyde bellwether case in the ongoing litigation concerning its various inferior vena cava (“IVC”) filters. See Opinion here.
The ruling is notable because the judge dismissed the failure to warn claims. In March 2018, a jury awarded a different plaintiff — Sherr-Una Booker — $3.6 million in damages on her failure to warn claim. In addition, the next bellwether cases have been chosen and tentative trial dates have been set.
This article provides some general information on the status of the ongoing litigation, the bellwether cases and of the partial summary judgment rendered in the Hyde case.
Georgia Products Liability Attorneys — IVC Litigation: Arizona Venue and Bellwether Cases
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Thousands of patients across the country have filed personal injury claims against Bard alleging that Bard’s IVC filters are/were defective and caused serious injury or death. The federal cases have been consolidated before one Judge — Hon. David G. Campbell — in the US federal district court in Arizona. Although the cases themselves might be brought under various other state laws — such as Georgia statutes and case law — the trials are being conducted in Arizona.
Further, as is customary in complex multidistrict litigation, certain cases are chosen as “bellwether” cases. These bellwether cases are scheduled to go to trial first and are chosen by the judge with consultation from the parties and attorneys. These bellwether cases help the parties evaluate the strengths and weaknesses of their various individual cases which, in turn, help with settlement negotiations. Note that BOTH the judge’s rulings and the verdicts rendered by the juries are important. The rulings and verdicts provide realistic expectations for the parties and, as noted, this helps with potential settlements.
Two bellwether cases have gone to trial: Booker and Jones. In June-July 2018, the next four bellwether cases were chosen: Carol Kruse (September 2018), Lisa Hyde (November 2018), Debra Mulkey (February 2019) and Debra/James Tinlin (May 2019).
The choice of Tinlin as the sixth bellwether case provides a good example of how the bellwether cases are chosen. In June 2018, Bard’s attorneys proposed that the sixth bellwether case be the one filed by the King plaintiff. However, the plaintiffs’ lawyers objected and proposed the Tinlin plaintiff. The judge evaluated the arguments put forward by the various sets of lawyers in court filings and chose the Tinlin case for the following reasons:
- The five bellwether cases chosen so far involve the Bard IVC filters known as the G2 filter (Booker and Kruse) and the Bard Eclipse filter (Jones and Mulkey) — there is a disagreement about whether Hyde received a G2 or an Eclipse
- So far, no bellwether case involves a third type of Bard filter called the Recovery filter
- The Judge stated that it was important to have a Recovery filter case among the bellwether cases
- The King case involved a G2 filter
- The Tinlin case involved a Bard Recovery filter
- While the facts of the King case involved perforation and an unsuccessful retrieval attempt (important fact patterns for many of the cases), the judge felt it was more important that the sixth bellwether be a Recovery filter case
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For these reasons, the Tinlin case was chosen as the sixth bellwether case. (As an aside, various cases involve three other Bard filters: the Meridian, the Denali and the Simon Nitinol (“SNF”). No bellwether cases are scheduled with respect to the first two. There are about 100 cases filed with respect to the SNF. Those 100 or so cases have been removed from the multi-district litigation and will no longer be part of the Arizona venue consolidation. Those cases will probably be returned to their local federal courts or might be consolidated differently.)
Georgia Products Liability Attorneys — Hyde Partial Summary Judgment
As noted, on July 26, 2018, Judge Campbell granted partial summary judgment in favor of Bard in the Hyde bellwether case. This means that part of the case was dismissed.
The plaintiff in that case — Lisa Hyde — had a Bard G2X filter implanted in 2011. In May 2014, a CT scan showed that the filter had tilted, perforated the IVC wall, and fractured, with one strut lodged in the right ventricle of her heart. Mrs. Hyde underwent surgery in August 2014 during which the filter and fractured strut were removed.
Mrs. Hyde and her husband assert various claims against Bard including:
- Failure to warn
- Strict liability design defects
- Negligent design defects
- Failure to recall
- Misrepresentation and concealment
- Breach of implied warranty
- Negligence per se
- Fraudulent trade practices
- Loss of consortium
- Punitive damages
Judge Campbell held that Wisconsin law would apply to the Hyde case. After evaluation of the arguments made in court filings, the judge dismissed — on summary judgment — the claims for failure to warn, failure to recall, misrepresentation, concealment, and fraud, and breach of implied warranty. The Hyde case will go to trial on the claims for strict liability design defect, negligent design, negligence per se, loss of consortium and punitive damages.
As noted above, dismissal of the failure to warn claims is important since Bard lost on a failure to warn claim in March 2018 (“Booker case”). In the Booker case, the applicable law was Georgia law. However, for Hyde, the applicable law is Wisconsin law. Under Wisconsin law, there is a different standard for causation for failure to warn. Under Wisconsin law, a plaintiff must prove that the failure to warn was a “but-for” cause of the injury. This requires proof that some behavior would have changed or some different choice would have been made had the warning been different. See Kurer v. Parke, Davis & Co., 679 N.W.2d 867 (Wis. Ct. App. 2004) (“A plaintiff who has established both a duty and a failure to warn must also establish causation by showing that, if properly warned, he or she would have altered behavior and avoided injury.”).
In the Hyde case, Judge Campbell ruled that Mrs. Hyde did not have any evidence that she (and/or her doctor) would have made an alternative choice if the Bard written warnings/disclosures had been different. As the court stated: “Plaintiffs argue at length that Bard’s warnings for the G2X were inadequate, but present no evidence or argument that an adequate warning would have prevented use of the Bard filter in this case.” This ruling was based largely on what Mrs. Hyde’s doctor — Dr. Henry — stated during his deposition including the following:
- Henry testified that he did not remember Mrs. Hyde specifically or the filter implanted
- He had no independent recollection of her specific procedure, his thought processes leading to the surgery, why that filter was chosen or what may have been explained to Mrs. Hyde regarding potential risks and treatment options
- He did not know whether he would have considered information about complication rates among filters in making the treatment decision for Mrs. Hyde
- He stated that he “trusted” FDA-cleared and FDA-approved devices and gave more credence to FDA clearance than to claims made by manufacturers
- Had he know about certain studies with respect to migration rates of filters, he did not know if that would have changed his treatment decision(s)
From this and other evidence, Judge Campbell ruled that Mrs. Hyde had no evidence from which a reasonable jury could conclude that Dr. Henry would have made a different treatment decision had the Bard warnings/disclosures been different. As such, the judge held that the failure to warm claims would NOT go before the jury in September. But, as noted, Mrs. Hyde’s case will still go to trial, but on the other remaining legal claims.
Georgia IVC Litigation Attorneys: Contact the Roger Ghai Law Offices
For more information, contact the Kennesaw medical device malpractice attorneys at the Roger Ghai Law Offices Our attorneys can help if you or a loved one has been injured as a result of complication from an IVC filter implantation. We provide legal services for the residents of Cobb County including the communities of Kennesaw, Acworth, Marietta and the surrounding areas. Click here to schedule your consultation.