Lots of cases get parked in MDLs. There is no denying it. It’s built into the system. Individual cases get brought together in a single court for the purpose of consolidated pretrial proceedings. For the most part, except for cases selected as bellwethers, that means MDLs are focused on general discovery, general experts, and general legal rulings. Things that apply to cases across the litigation. With the lack of case-specific discovery and work-up, for some plaintiffs MDLs may seem like little vacations. Someplace to kick back, check out the sights, and wait to see how things shake out. But plaintiffs should be paying close attention because MDLs are not Vegas — what happens in an MDL does not stay in an MDL. Does it really stay in Vegas either?
If a litigation reaches the point of remanding cases to their home jurisdictions, those cases come with baggage – the rulings from the MDL. In fact, MDL judges prepare remand orders precisely to let remand judges know what happened during the MDL and what is left to accomplish post-remand. Imagine someone documenting your Vegas excursion and then preparing a concise and precise accounting of the key events of that trip for all your family and friends back home. No keeping Michael Bolton karaoke night swept under the rug. Likewise in an MDL, what is past is in fact prologue.
That brings us to today’s case – Blackwell v. C.R. Bard, 2021 WL 2355393 (N.D. Tex. Jun. 9, 2021). We’ll start with a prologue ourselves. Following surgery, plaintiff was implanted with an IVC filter to aid in preventing blood clots from traveling to the heart and lungs. Id. at *1. A few weeks after implant, plaintiff returned to the hospital where he was diagnosed as having a clot “at, near, or directly on the IVC filter.” The clot prevents the filter from being removed and plaintiff will likely have chronic pain and swelling. Id.
While the case was part of the In re: Bard IVC Filters Products Liability Litigation, the parties conducted general fact and expert discovery. The remand order advised that “courts receiving these [transferred] cases need not be concerned with facilitating general expert, corporate, and third-party discovery,” as that had already been completed. Id. at *2. There was a narrow exception. General experts could supplement their reports to “add medical literature published since 2017 . . . and expand their MDL trial testimony to include a discussion of such new literature.” May 10, 2021 Order in Blackwell at p. 2.
Post-remand, plaintiff in Blackwell identified one of the MDL general experts, Dr. Garcia, as a general expert in this case. However, plaintiff also introduced a new general expert report from Dr. Garcia. In his new report, Dr. Garcia added a new opinion that IVC filters can cause clots on and around the device itself. Id. at p. 3. Because that opinion was not disclosed in the MDL, Dr. Garcia’s new report was not a “supplement,” and therefore violated the MDL’s order closing general expert discovery. Id. at p. 4. The court excluded Dr. Garcia’s new opinion. This sounds to us like while plaintiff was “parked” or “vacationing” in the MDL, he had not paid attention to the fact that the general causation evidence offered by plaintiffs collectively failed to include the type of injury he suffered. His attempt to modify that post-remand was blocked, correctly, by the remand court. Without general causation evidence, this case was already on shaky ground, but the ultimately, the court had numerous other avenues to reach summary judgment.
First, plaintiff’s warning claims failed because plaintiff suffered an injury that defendant warned about. The instructions for use (IFU) that accompanied the IVC filter specifically included a warning identifying thrombosis and occlusion as potential complications that “have been associated with serious adverse events.” Blackwell, 2021 WL 2355393 at *4. Therefore, the court found defendant’s warning adequate as a matter of law. Id. Plaintiff’s argument that other courts had ruled differently was brushed aside because plaintiff offered no evidence of how the record before the other courts was similar to the one in this case. Id.
Further, plaintiff chose not to depose his implanting surgeon. The court makes clear that it was a choice, noting the doctor is still practicing at the same hospital and was easily found. Id. at *6n.5. Because of that choice, plaintiff had no evidence that his surgeon ever saw or read defendant’s warning. Therefore, regardless of adequacy, the warning could not have been the cause of plaintiff’s injury. Id. at *5. Plaintiff tried to rely on a patient brochure that his surgeon allegedly gave him, but that is still not evidence that the doctor himself read or relied on the brochure. Id.
Finally, plaintiff’s only remaining claim was for design defect. On this claim, plaintiff relied on his case specific expert. That expert submitted an original, timely report and then submitted one seven months later, the day before plaintiff’s motion for summary judgment was due. In the new report, plaintiff’s expert for the first time opined that a different type of filter was a safer alternative design – an essential element of a design defect claim under Texas law. Id. at *6. But, in an earlier decision, the court had already struck the new report as untimely. Therefore, plaintiff did not have the necessary expert evidence of a safe alternative design to support his design defect claim.
Plaintiff missed general causation while the case was in the MDL, missed deposing the surgeon after remand, and failed to include a key element in his case specific report. So, while he was trying to undo what was already done in the MDL, he neglected to do the case specific work he was supposed to do. If vacation mistakes are going to follow you home (like getting your nose pierced), at least you should try not to compound it with more mistakes at home (as if bangs were going to distract from the nose ring!).