Bard IVC Filter Lawsuit Verdict of $3.3M Upheld By Appeals Court

An appeals court suggested that the manufacturer should have made broader arguments during the Bard IVC filter lawsuit trial, instead of waiting until the case reached the appellate level.

A federal appeals court has upheld a $3.3 million Bard IVC filter verdict awarded to a nurse, who said a small blood clot filter implanted in her inferior vena cava (IVC) fractured, leaving debris from the device embedded in her heart.

The trial involved facts similar to those presented in more than 8,000 product liability lawsuits filed against C.R. Bard over problems with retrievable IVC filters, each involving allegations that plaintiffs suffered painful and potentially complications when the small devices moved out of position, punctured internal organs or fractured, causing small pieces to travel throughout the body.

Given common questions of fact and law involved in the litigation, claims filed throughout the federal court system were centralized in the District of Arizona in 2015, where U.S. District Judge David G. Campbell presided over coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation. However, following multiple bellwether trials and massive verdicts returned by juries, most of the Bard IVC filter lawsuits have since settled.

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In 2019, Judge Campbell remanded Bard IVC filter lawsuits that did not settle back to the U.S. District Court where they would have originally been filed, since the coordinated discovery and pretrial proceedings in the federal multidistrict litigation (MDL) had been completed.

One of the remanded claims was brought by Natalie Johnson, and the lawsuit went to trial in federal court in Madison, Wisconsin in June 2021, resulting in a $3.3 million jury award. However, Bard appealed the IVC filter verdict, arguing that an expert witness presented by Johnson provided different testimony at trial than in previous discovery and depositions.

Bard asked the U.S. Court of Appeals for the Seventh Circuit to overturn the verdict, indicating that the expert witness’ testimony violated disclosure rules. However, the appeals court issued an opinion (PDF) on August 11, rejecting Bard’s appeal.

The Seventh Circuit noted that it agreed that the changing testimony appeared to violate court rules. However, that did not provide a basis for overturning the award.

“Bard is trying to sweep a critical problem under the rug: It did not raise in the trial court the broader argument it presses here,” the panel ruled, noting that during the trial it’s objections to the testimony were far more narrowly focused, and the court addressed those objections. “The biggest problem we see with Bard’s current arguments is that they do not reflect what happened at the trial.”

The court also rejected arguments that Johnson’s treating physician should not have been allowed to testify at trial after ignoring a subpoena, noting that the manufacturer was warned that Johnson intended to call the doctor to the stand for testimony, which happened after she had already rested her case.

Bard was allowed to call its own witness as a rebuttal before jury deliberations began.

“Our decision in this appeal should not be misinterpreted as our endorsement of some of Johnson’s counsel’s trial tactics,” the appeals court determined. “But ours is an adversary system, and parties in civil litigation are held to the decisions they make. From that perspective, we find no reversible error, and we AFFIRM the district court’s denial of defendants’ motion for a new trial.”

It is unclear whether C.R. Bard intends to try to appeal the IVC filter lawsuit ruling to the U.S. Supreme Court, which only agrees to consider a small portion of claims presented each year, and would largely be seen as a “Hail Mary” attempt to avoid paying the damage award.

Bard Now Faces Port Catheter Lawsuits

Years after resolving most of the IVC litigation, Bard now faces a new emerging mass tort, with dozens of Bard PowerPort lawsuits brought throughout the federal court system in recent months.

Each of those claims raise similar allegations, indicating that the implantable port catheters are prone to degrade and fracture, sending small pieces to the heart, lungs or traveling to other areas of the body.

Given similar questions of fact and law raised in the lawsuits, the U.S. Judicial Panel on Multidistrict Litigation (JPML) recently transferred all Bard Port Catheter lawsuits to Judge Campbell in the District of Arizona, pointing to the efficient job he did presiding over the prior IVC filter lawsuits againt the same manufacturer.

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