Munson v. C.R. Bard, Inc.

• Decision Date: 20 September 2021
• Docket Number: CIVIL ACTION NO: 3:14cv279-MPM-RP
• Citation: 561 F.Supp.3d 655
• Parties: Tonya MUNSON, Plaintiff v. C.R. BARD, INC. and Bard Peripheral Vascular, Inc., Defendants
• Court: U.S. District Court — Northern District of Mississippi

561 F.Supp.3d 655

Tonya MUNSON, Plaintiff

v.C.R. BARD, INC. and Bard Peripheral Vascular, Inc., Defendants

CIVIL ACTION NO: 3:14cv279-MPM-RP

United States District Court, N.D. Mississippi, Oxford Division.

Signed September 20, 2021

Ben C. Martin, Pro Hac Vice, Laura Baughman, Pro Hac Vice, Thomas Wm. Arbon, Pro Hac Vice, Kristi Wood, Pro Hac Vice, Martin Baughman, PLLC, Dallas, TX, David Shelton, Shelton Davis, PLLC, Oxford, MS, for Plaintiff.

Brian T. Feeney, Pro Hac Vice, Greenberg Traurig, LLP, Philadelphia, PA, Cara Mittleman Kelly, Pro Hac Vice, Charles Mark Stratton, Pro Hac Vice, Elizabeth Ross Hadley, Austin, TX, Charles Wade Bowden, Pro Hac Vice, Jason H. Okleshen, Pro Hac Vice, Greenberg Traurig, P.A, West Palm Beach, FL, J. Carter Thompson, Jr., Baker, Donelson, Bearman & Caldwell, Jackson, MS, Jacqueline Greenberg Vogt, Pro Hac Vice, Greenberg Traurig, LLP, Florham Park, NJ, Lori G. Cohen, Pro Hac Vice, Greenberg Traurig, LLP, Atlanta, GA, for Defendants.

ORDER

Michael P. Mills, UNITED STATES DISTRICT COURT JUDGE

This cause comes before the court on the motion of defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, "Bard"), to dismiss and/or for summary judgment, pursuant to Fed. R. Civ. P. Rules 12 and 56. Plaintiff Tonya Munson has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, is prepared to rule.

On April 18, 2006, Munson had a medical device known as a G2 Filter System ("G2 Filter") surgically implanted into her inferior vena cava ("IVC") [See Complaint at 3]. The G2 Filter is a device designed to filter or "catch" blood clots

called "thrombi" that travel from the lower portions of the body to the heart and lungs [See id. at 4]. Thrombi that reach the lungs are considered "pulmonary emboli" and can be fatal [See id. ] IVC filters can be inserted either on a permanent or temporary basis. [See id. ]. Munson alleges that on January 4, 2012 the G2 Filter "migrated in her body and is perforating her aorta and L4 vertebrae causing serious and ongoing physical, emotional, and economic damages." [Id. at 2; see id. at 24]. Due to the alleged failure of the G2 Filter, Munson alleges that she suffered very significant injuries, including the amputation of her lower leg, and that she incurred significant medical expenses and endured extreme pain and suffering. [See id. at 24].

On December 31, 2014 Munson filed a Complaint based on diversity jurisdiction [1]. Plaintiff alleges that, as early as 2005, Bard was aware and had knowledge of the fact that the G2 Filter was defective and unreasonably dangerous and was causing injury and death to patients. [See 1 at p. 13]. Plaintiff further alleges that despite Bard's knowledge of the dangers of the G2 Filter, it continued to market and offer the device for sale [See 1 at p. 14]. Due to plaintiff's reported experience with the G2 Filter, she seeks compensatory and punitive damages [See 1 at p. 35].

This case was part of the coordinated/consolidated pretrial proceedings in In re: Bard IVC Filters Products Liability Litigation , Multidistrict Litigation ("MDL") 2641, in the District Court of Arizona [39]. General expert discovery was conducted in the MDL. In September 2019, this case was remanded for further proceedings before this court [40]. Bard has presently moved to dismiss and/or for summary judgment, arguing that there exists no genuine issue of material fact regarding its liability and that it is entitled to judgment as a matter of law.

Discussion

For the reasons discussed below, this court concludes that this case presents material issues of fact regarding Bard's liability for at least some of the products liability claims raised by plaintiff in this case and that it would be improper to dismiss it before trial. In reaching this conclusion, this court is influenced both by generalized factors relating to Bard's conduct in releasing and marketing retrievable IVC filters such as the one in this case and also by this court's interpretation of Mississippi law as it relates to the specific legal arguments raised by Bard in its motion for summary judgment. This court will first discuss the generalized factors which lead it to conclude that triable jury issues exist in this case before proceeding to a more legalistic discussion of specific issues of Mississippi law raised by Bard in its motion.

In discussing the products liability claims in this case, this court begins by noting its agreement with Bard that these claims must be analyzed under the provisions of the Mississippi Products Liability Act ("MPLA"), and not Mississippi common law. Indeed, this court has long expressed its view that the MPLA was intended by the Mississippi Legislature to supplant the common law products liability jurisprudence of this state, and it sees no reason to deviate from this view in this case.

In a 2012 order in Tucker v. Yamaha Motor Corp., U.S.A. , No. 3:07CV143, 2012 U.S. Dist. LEXIS 191576 (N.D. Miss. Dec. 3, 2012), this court agreed with a manufacturer defendant that, even prior to 2012 amendments to the MPLA, common law negligence and implied warranty claims were properly considered to be subsumed into the provisions of the MPLA. In so holding, this court wrote that:

While the Supreme Court in Lawson v. Honeywell Intern., Inc. , 75 So.3d 1024, (Miss. 2011) did not specifically hold that a common-law negligence claim could not be asserted against a designer of a product who was also its manufacturer, this appears to be the implication of the Court's decision. This court submits that this is the most reasonable interpretation of § 11-1-63, since the statute is, by its terms, applicable to "any action for damages caused by a product except for commercial damage to the product itself." It would make little sense for the Legislature to so provide, only to permit plaintiffs to bypass its provisions by asserting a common-law negligence claim. This would render the enactment of the MPLA an exercise in legislative futility, since few, if any, plaintiffs would choose to proceed under the stricter provisions of the MPLA if they could simply assert a common-law negligence claim instead.

The court has similar concerns regarding the ability of plaintiffs to assert implied warranty claims in products cases. Indeed, the court finds even greater concerns in the implied warranty context, since negligence claims at least have their origin in tort law and are not far removed conceptually from MPLA claims (which itself incorporates a negligence analysis in its provisions). The implied warranty cause of action, by contrast, has long occupied a rather unclear status on the fringes of Mississippi products liability law, which is unsurprising considering its origins in commercial law.

Tucker , 2012 U.S. Dist. LEXIS 191576, at *16.

As this court noted in Tucker , it seems clear that if plaintiffs could side-step the rigorous provisions of the MPLA simply by asserting a common law negligence or implied warranty claim, then this would serve to render the enactment of that statute an exercise in legislative futility. Moreover, while the Legislature made it abundantly clear in its 2014 amendment to the MPLA that such was not its intent, this court was, as quoted above, already operating under the assumption that this was the case before this amendment. In light of the foregoing, this court agrees with Bard that plaintiff improperly asserts common law negligence and implied warranty claims in this case and that these claims should be dismissed. This court intends to try this case under the provisions of the MPLA, and any liability faced by defendant will be based upon the provisions of that Act.

Having said that, this court has long viewed products liability cases as being a form of litigation which tend to produce triable issues for a jury's consideration, since, in its experience, these cases often come down to a "battle of the experts" regarding rather technical matters as to which this court itself is most assuredly not an expert. This is certainly true in this case, which includes highly complex issues relating to liability and causation relating to the failure of a medical device. Unsurprisingly, each side has been able to offer expert testimony supporting their respective positions in this case, and, while a jury may find Bard's expert testimony in this context more reliable, this court believes that plaintiff has a legitimate case to make before the jury.

This court notes that, aside from the complexity of the expert testimony in this case, there are additional considerations which render it disinclined to take it from a jury's consideration. The seriousness of the liability issues in this case is underscored by the severity of the injuries suffered by plaintiff, which she describes in her brief as follows:

This is a products-liability action in which Plaintiff seeks to recover damages for personal injuries caused by a Bard G2 inferior vena cava (IVC) filter implanted in her body, ostensibly to filter blood clots

(thrombi ) from her IVC and to thus prevent those clots from traveling from the lower portions of the body to her heart or lungs. As a result of Defendants’ defective design and failure to warn, instead of filtering blood clots as intended, Plaintiff's filter migrated, perforated her IVC, and penetrated her aorta causing clots that migrated to her lower extremities and required the amputation of her right lower leg. A strut from the filter broke off and remains lodged in her right lung to this day.

[Plaintiff's brief at 4].

Clearly, these are very serious injuries, which required the amputation of plaintiff's lower leg, and, more importantly, her brief makes what this court regards as strong allegations that Bard's decision to rush its retrievable IVC filters to market in spite of clear safety warnings may have contributed to her injuries. Specifically, plaintiff writes in her brief that:

Despite owning

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