By Leah S. Poniatowski, J.D.
Pain and failed attempts to remove device were sufficient to put patient on notice of probable claim against the manufacturer in 2010.
A patient implanted with a filter to prevent blood clots did not file a timely claim against the manufacturer of the device because her claim accrued when she learned of "some" injury attributable to the product, which had occurred more than three years before she filed her lawsuit, a federal district court in Wisconsin ruled (Henley v. C.R. Bard, Inc., December 4, 2019, Adelman, L.).
The patient who had been treated for a pulmonary embolism had an inferior vena cava (IVC) filter implanted in order to help prevent blood clots from reaching her heart and lungs. The filter was a Bard G2 Filter, manufactured and sold by C.R. Bard, Inc. and Bard Peripheral Vascular, Inc., and was implanted in June 2010. Not long after the procedure, the patient believed the filter was the cause of pain in her abdomen/pelvis, back, and right hip/thigh. She reported her discomforts during a follow-up visit. Another physician attempted to retrieve the filter approximately a month later but was unable to do so because the filter had tilted.
Another physician attempted to remove the filter and also was unsuccessful because the device was "severely tilted." The attempted retrieval procedures were incredibly painful for the patient. Although the filter was tilted and unremovable, the physician told the patient that it did not need to be removed because it was still functioning to prevent blood clots. After seeing a third physician, the patient was referred to a vascular surgeon who advised her not to undergo the high-risk procedure of removing the device as long as her pain was under reasonable control. By October, the patient obtained another opinion about removing the device. This physician, who also attempted to remove the device and failed, noted that the filter by that point had fractured.
In 2013, the patient consulted with an attorney, eventually filing a lawsuit against the filter manufacturer in January 2014. Her case was initially transferred as part of a multi-district litigation procedure in Arizona, and following the conclusion of the pretrial proceedings, her case was returned to the federal district court in Wisconsin. The manufacturer moved for summary judgment.
Statute of limitations. Under Wisconsin law, the applicable statute of limitations is three years. The manufacturer asserted that because the cause of action was filed more than three years after the third failed removal procedure, her claim was time-barred. The patient alleged that she did not learn of her injury until she consulted with the attorney and, thus, under the discovery rule, her claim was timely. The court explained that under the discovery rule, a potential plaintiff’s cause of action does not accrue until "the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant’s conduct or product." The court added that the "single-injury rule" also was applicable to the case at bar. That rule posits that the statute of limitations runs at "the appearance of the first compensable injury … even for future injuries that may be difficult to predict."
The patient asserted that she did not believe the filter was unsafe to leave in her body until she consulted with the attorney in 2013. The court disagreed, finding that the patient was aware that the filter was causing her injury in 2010, namely by learning that the filter had tilted and having undergone painful and unsuccessful removal procedures. The court added that a reasonable person in her position would understand that her injury was probably caused by the manufacturer’s product. The patient did not assert that doctor error contributed to her injury. Therefore, her claim accrued at the end of 2010.
Restricted filings. Both the manufacture and the patient filed motions to restrict certain materials from public review. The manufacturer’s motion was denied as moot because the statute of limitations issue was dispositive. The patient’s motion was "vastly overbroad" and lacked good cause. Accordingly, the patient’s motion was denied.
The case is No. 14-C-0059.
Attorneys: Ben C. Martin (Martin Baughman PLLC) and John A. Dalimonte (Dalimonte Rueb Stoller LLP) for Angela M. Henley. Richard B. North, Jr (Nelson Mullins Riley & Scarborough) for CR Bard Inc. Matthew B Lerner(Nelson Mullins Riley & Scarborough) for Bard Peripheral Vascular Inc.
Companies: Humana Insurance Co.; CR Bard Inc.; Bard Peripheral Vascular Inc.
MainStory: TopStory FDCActNews MDeviceNews PLDeviceNews WisconsinNews
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