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$3.6 Million Verdict Over Bard IVC Filter Fracture Upheld By 9th Circuit Court of Appeals

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A federal appeals court has upheld a $3.6 million jury award against C.R. Bard, for complications caused by an IVC filter that fractured and broke, rejecting multiple arguments by the manufacturer that the March 2018 verdict should be overturned.

The case was the first out of more than 3,500 IVC filter lawsuits filed against Bard in the federal court system to go before a jury, involving claims presented by Sherr-Una Booker, who had a Bard G2 Vena Cava filter fracture inside her body.

The trial was an early “bellwether” case, designed to help the parties gauge how juries are likely to respond to certain evidence and testimony presented throughout the litigation, where plaintiffs each raise similar allegations that the small blood clot filters were defectively designed and prone to fracture or migrate out of position, causing a variety of serious and potentially life-threatening injuries.

After considering evidence in the Booker case, a federal jury indicated Bard should be required to pay $1.6 million in compensatory damages, with an additional $2 million in punitive damages designed to punish the manufacturer for recklessly disregarding the health and safety of consumers.

The manufacturer challenged the verdict at the U.S. Court of Appeals for the Ninth Circuit, arguing that Booker’s claims were preempted by federal law, that state law in Georgia, where the case originated, did not allow failure to warn claims, and said there were no grounds for the punitive damages claim.

In an opinion (PDF) issued last week, a panel of three federal judges rejected every argument and upheld the full amount of the verdict.

“The panel held that Bard’s preemption argument failed because plaintiff’s claim rested on an asserted state-law duty to warn of the risks posed by the particular design of Bard’s G2 Filter, and the FDA had not imposed any requirements related to the design of that device or how a device of that design should be labeled,” the judges wrote in their opinion.

Since the initial Booker verdict, Bard has reached IVC filter settlement agreements that resolved thousands of cases, but the manufacturer continues to face a number of individual claims that have been remanded back to U.S. District Courts nationwide for individual trial dates in the coming months and years.

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