C.R. Bard Wins Partial Summary Judgment, but IVC Filter Lawsuit Can Continue

Tampa, FLAn IVC filter lawsuit was just days ago watered down somewhat for the plaintiff after the judge in the case granted partial summary judgment to defendant C.R. Bard concerning allegations over failure to warn, manufacturing defects and negligent misrepresentation. However, plaintiff Denise Ocasio’s claims over alleged design flaws and the need for punitive damages are still in play.

The Bard IVC filter has suffered from a checkered history, and the risk associated with an inferior vena cava filter is nothing new. US District Judge Charlene Edwards Honeywell, in granting partial summary judgment to Bard, made that very point in her remarks. “The evidence is undisputed that perforation is a risk inherent in the design of all IVC filters, including (and, perhaps, especially for) the [Bard G2 IVC filter],” Judge Honeywell said.

It was in 2010 that IVC filter lawsuit plaintiff Ocasio was diagnosed with a pulmonary embolism. She underwent surgery following her diagnosis to implant a Bard G2 filter. The device eventually perforated her inferior vena cava and progressed into her aorta. The result, according to court documents, was a series of blood clots.

Ocasio sued alleging failure to warn, defective manufacturing of the Bard IVC filter and negligent misrepresentation. Judge Honeywell, on June 3, tossed those claims. “There is no evidence that the [instructions] failed to adequately apprise [Dr. Bruce Zweibel, the plaintiff’s surgeon] of the dangers of the G2 filter, including its risk for perforation,” Judge Honeywell said on June 3. “Plaintiffs have failed to provide any admissible expert testimony that would establish the inadequacy of the [instructions].”

As for the plaintiff’s claim for manufacturing defects, Judge Honeywell was equally determined that a manufacturing defect cannot be successfully claimed. “The evidence is undisputed that perforation is a risk inherent in the design of all IVC filters, including (and, perhaps, especially for) the G2 filter,” Judge Honeywell said.

Beyond that, however, Ocasio is free to pursue her claims for defective design. To that end, whether or not the Bard G2 filter’s benefits outweigh the risks constitutes a genuine dispute that is appropriate to bring to a jury, the judge said.

“Bard asserts that it is undisputed that IVC filters are life-saving devices, and that they all carry risks of serious injury, including perforation,” Judge Honeywell said. “However, Bard fails to address whether the G2 filter was as safe as current testing and research permitted or whether its benefits outweighed its known risks - and, as plaintiffs contend, the evidence reveals that the G2 filter was far from being as safe as it could have been made.

“There is also evidence that, despite possessing this information, Bard failed to properly test and/or redesign the G2 filter to resolve its recognized propensity to fail,” Judge Honeywell went on. “And there is evidence that Bard continued to market and sell the G2 filter despite failing to adequately address these known issues.”

The IVC filter lawsuit is Ocasio et al. v. C.R. Bard, Inc. et al., Case No 8:13-cv-01962 in the US District Court for the Middle District of Florida.