United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN UNITED STATES DISTRICT JUDGE
Henley alleges that she was injured by a defective medical
device manufactured and sold by the defendants, C.R. Bard,
Inc., and Bard Peripheral Vascular, Inc. (collectively,
“Bard”). After she filed her complaint, the
Judicial Panel on Multidistrict Litigation transferred the
case to the United States District Court for the District of
Arizona for consolidated pretrial proceedings. Those
proceedings have concluded, and the case has been returned to
this court. Before me now are Bard's motion for summary
judgment on the plaintiff's claims, Bard's motion to
exclude certain opinions by one of the plaintiff's
experts, and the parties' motions to seal certain
materials filed in connection with these motions.
motion for summary judgment is based on several grounds, but
I will discuss only one of them-the statute of
limitations-because it is dispositive. Moreover, because the
plaintiff's expert testimony does not relate to the
statute-of-limitations defense, I will deny the motion to
exclude the testimony as moot.
plaintiff needed surgery in June 2010. At that time, she had
recently been treated for a pulmonary embolism, a condition
in which one or more arteries in the lungs becomes blocked by
a blood clot. Because of her medical history, the plaintiffs
doctors recommended that she receive a medical device known
as an inferior vena cava filter, or "IVC filter,"
prior to the surgery. This is a filter that is placed in a
large vein (the inferior vena cava) that carries blood from
the lower part of the body to the heart. Its purpose is to
catch blood clots that form in the legs as they travel though
the vein and prevent them from reaching the heart and lungs.
filters can be placed in a patient temporarily or
permanently. In the plaintiffs case, her doctors recommended
that she receive a temporary filter-also known as a
"retrievable" filter-that would be removed two
weeks after the surgery. Bard manufactures and sells such a
filter, known as the Bard G2 Filter. The filter is conical in
shape and consists of a main shaft to which twelve struts
(six "arms" and six "legs") are attached.
Once the filter is implanted in the vein, its arms and legs
open and anchor the filter to the walls of the vein. It looks
11, 2010, Dr. Satchidanand Hiremath implanted a Bard G2
Filter into the plaintiffs inferior vena cava. A short time
later, the plaintiff began experiencing abdominal/pelvic
pain, back pain, and right hip/thigh pain, which she
attributed to the filter. On July 5, 2010, during a follow up
visit with one of her physicians, the plaintiff reported
experiencing “some mid to right abdominal discomfort
since the placement of the filter.” Def. Prop. Finding
of Fact (“PFOF”) ¶ 10.
12, 2010, another physician, Dr. Moises Yoselevitz, performed
a procedure in which he attempted to retrieve the filter.
However, he was unable to do so because the filter exhibited
“significant tilting.” Def. PFOF ¶ 11;
see also Compl. ¶ 101 (“On or about July
12, 2010, Plaintiff underwent removal, but it was ultimately
unsuccessful because of the significant tilt of the
filter.”). As of this date, the plaintiff knew that Dr.
Yoselevitz could not retrieve the filter and that the filter
was tilted. Def. PFOF ¶¶ 11-12.
16, 2010, during a consultation with Dr. James Walker, Ms.
Henley reported that “since the filter placement, she
has experienced significant right lower back pain.”
Id. ¶ 13. Dr. Walker's consultation record
notes: “Impression: Tilted inferior vena cava filter
causing low back pain.” Id.
21, 2010, Dr. Walker performed a procedure in which he
attempted to remove the filter. However, because of the
“severe tilting of the device, ” he was unable to
retrieve it. See Dr. Walker's Notes, ECF No.
41-5 at p. 20 of 32. The plaintiff describes the procedure as
being “excruciatingly painful.” Pl. PFOF ¶
233. Like Dr. Yoselevitz, Dr. Walker noted after the
procedure that the filter exhibited “significant
tilting.” Def. PFOF ¶ 14. He also noted that one
of the legs was displaced “slightly cranial” and
that the plaintiff experienced abdominal pain during the
procedure. ECF No. 41-5 at p. 20 of 32.
the procedure was over, Dr. Walker told the plaintiff that he
was unable to retrieve the filter because it was tilted. Pl.
Dep. at 89, ECF No. 41-6. However, he also told her that the
filter could remain in her vein and would continue to prevent
blood clots from reaching her heart and lungs. Id.
The plaintiff was “appalled” by this news because
she wanted the filter removed from her body. Id. The
plaintiff was also “devastated” because she
thought the filter was going to be temporary but now realized
she was “going to be stuck with it for the rest of
[her] life.” Id. at 91.
22, 2010, the plaintiff saw one of her other physicians. The
office notes for this visit state that the plaintiff
continued to experience abdominal discomfort that she
attributed to the filter. The notes state that a CT scan
showed no other abnormality that could account for the pain,
that the plaintiff experienced abdominal pain during Dr.
Walker's attempt to remove the filter, and that the
plaintiff's abdominal pain had increased since Dr.
Walker's retrieval attempt. ECF No. 41-5 at pp. 21-22 of
32. The plaintiff's physician recorded his impression
that leaving the filter in place was “not an acceptable
situation, since there is pain associated with it.”
Id. at p. 22. For this reason, the physician
referred the plaintiff to a vascular surgeon to find out what
could be done to remove the filter.
September 20, 2010, the plaintiff returned to her physician
following a consultation with a vascular surgeon. The office
notes state that the surgeon advised the plaintiff that
surgery to retrieve the filter would be a high-risk
procedure. The surgeon advised the plaintiff that if her pain
was under reasonably good control, then she should not
undergo the procedure. The physician's notes state that
the plaintiff reported that she was taking Vicodin for her
pain and that it provided her with enough pain relief to
enable her to ...