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Henley v. C.R. Bard Inc.

United States District Court, E.D. Wisconsin

December 4, 2019

ANGELA HENLEY, Plaintiff,
v.
C.R. BARD, INC., et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN UNITED STATES DISTRICT JUDGE

         Angela 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.

         The 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.

         I. BACKGROUND

         The 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.

         IVC 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 like this:

         (Image Omitted)

         On June 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.

         On July 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.

         On July 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.

         On July 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.

         After 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.

         On July 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.

         On 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 ...


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