Products Liability Law Reporter

In 2013, Natalie Johnson, 60, was implanted with the Meridian Vena Cava filter as a prophylactic measure against a pulmonary embolism during an upcoming surgery involving her lower extremities. Approximately five years later, a CT scan revealed that the filter had fractured. One of its tines had embolized to Johnson’s right ventricle, and another had become embedded in her vena cava just above the filter. Johnson had the entire filter removed.

She sued C.R. Bard, Inc., and Bard Peripheral Vascular, Inc., alleging strict liability manufacturing defect, design defect, and failure to warn; negligence per se and negligent design, manufacture, failure to warn, and misrepresentation; breach of express and implied warranties; and fraudulent misrepresentation and concealment.

The jury awarded $3.3 million.

Citation: Johnson v. C.R. Bard, Inc., No. 3:19-cv-00760-wmc (W.D. Wis. June 17, 2021).

Plaintiff counsel: AAJ member Joseph R. Johnson, West Palm Beach, Fla.; and AAJ member Ben C. Wright, AAJ member Thomas W. Arbon, and Jason Voelke, all of Dallas.

Comment: See also McMan v. C.R. Bard, Inc., 2021 WL 3079894 (E.D. Mich. July 21, 2021). There, in August 2010, Mary Lou McMan was treated with a C.R. Bard Eclipse IVC Filter before undergoing gastric bypass surgery. In October 2012, her primary care physician ordered a spinal X-ray, which showed that the filter had a missing leg that embolized on the left side of McMan’s pelvis. McMan was not informed of this, however. In December 2014, McMan was referred for another X-ray, which showed a foreign object in the soft tissue of her pelvis, a condition that was unchanged since the previous X-ray. In April 2015, a vascular surgeon observed metallic densities present for at least three years, and this was attributed to the IVC filter. McMan sued C.R. Bard and Bard Peripheral Vascular, Inc., in a multidistrict litigation proceeding in December 2016. The case was later transferred to federal district court in Michigan. The defense moved for summary judgment on limitations grounds. Granting the motion, the district court found that the three-year limitations period begins to run when a claim accrues. A claim accrues, the court added, when the wrong is committed, regardless of when damages result. Here, a strut on the Eclipse filter fractured sometime before October 2012. Thus, the court held that the three-year limitations period had expired in October 2015, more than a year before McMan filed her complaint.