Photo of Michelle Yeary

We’ve used the term one-two punch to refer to a couple different situations – Daubert wins followed by the grant of summary judgment; Mensing preemption for generic manufacturers and no innovator liability for brand manufacturers.  And we’re going to dust it off again today to refer to Couturier v. Bard Peripheral Vascular, Inc., — F.Supp.3d –, 2021 WL 2885903 (E.D. La. Jul. 8, 2021).  Not only did defendant win summary judgment on design defect, but it also defeated plaintiff’s motion for summary judgment on several affirmative defenses.  Another one-two combination victory for defendants.

Five years after implantation, the IVC filter implanted in plaintiff perforated causing some complications.  Id. at *3.  Plaintiff’s suit is governed by Louisiana law which means his exclusive cause of action was the Louisiana Products Liability Act (LPLA).   Under the LPLA, plaintiffs can sue for design defect, failure to warn, manufacturing defect, and express warranty.  Plaintiff brought a claim for each, except manufacturing defect.  After summary judgment, all that remained was a disputed issue on failure to warn.

To prove a design defect claim, the LPLA requires evidence of a feasible alternative design.  However, the alternative design must not only have existed, but have been capable of preventing the plaintiff’s damage.  Id. at *6.  If the alternative did not make the product safer, the defendant could not have prevented the plaintiff’s injuries and cannot be liable for design defect.  First, as defendant points out, plaintiff’s own experts concede that all IVC filters can fracture and perforate.  Id.  These are known and warned about risks of the device and therefore cannot be design defects.  While plaintiff argued the filter has “design deficiencies,” he failed to describe the deficiencies or how they caused the perforation.  Id. at *7.  Plaintiff next argued that defendant failed to follow industry standards in the design process.  But “[p]laintiff confuses design process with a product defect and does not make a causal link that some misstep in not adhering to these standards lead to a defect in the filters.”  Id.  Finally, as to the alleged alternative design, plaintiff’s experts only opined that defendant’s filter had higher complication rates.  But that “does not negate the fact that these alternative filters sill put patients at risk of the same injuries as the [defendant’s] filter.”  Id.  Without evidence that an alternative design could have prevented his injuries, defendant was entitled to summary judgment on design defect.

The court did not award summary judgment on failure to warn based on the prescriber’s testimony that if he had been provided information about the allegedly higher risks, he would have gotten a different filter to use.  Id. at *8.   But the prescriber’s testimony was instrumental in the dismissal of plaintiff’s express warranty claim.  Plaintiff could not demonstrate that any statement by defendant was relied on by plaintiff or the surgeon in choosing defendant’s filter.  Instead, the prescriber testified that the specific filter was the only one available at the hospital.  Id. at *9.

On the flip side, plaintiff moved for summary judgment on six of defendant’s affirmative defenses and lost across the board.

Failure to mitigate and Comparative and/or Contributory Negligence:  Plaintiff failed to seek treatment for five years after the IVC filter was implanted and ignored his doctor’s advice after the perforation was identified.

Assumption of the risk:  Plaintiff’s wife signed an informed consent acknowledging plaintiff’s surgeon advised him of all known risks and plaintiff accepted those risks by undergoing the surgery.  Further, plaintiff’s failure to see medical treatment prevented discovery and treatment of his alleged injuries.

Sole proximate cause and superseding/intervening cause:  Defendant is entitled to introduce evidence of any potential or alternative/intervening causes.  In this case that includes expert evidence of physician malpractice in placement of the device.

Comparative fault of non-parties:  This too was supported by the evidence of physician malpractice and the surgeon’s testimony that he did not follow the IFU in several material ways.

Id. at *9-11.  Sounds like a lot of excellent evidence to us.

This one-two punch may not have been a complete knockout, but in an upcoming post we’ll tell you about punch number three – some fantastic in limine rulings.

Thanks to Lori Cohen at Greenberg Traurig for bringing this great defense win to our attention.