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It is time for our quarterly report on doings in the Nolen IVC case in the Middle District of Tennessee. Last April, we discussed a decision in the Nolen case that was rather bad on failure to warn and rather good on punitive damages. This time, in Nolen v. C.R. Bard, 2021 U.S. Dist. LEXIS 99206 (M.D. Tenn. May 26, 2021), the news is all good.

Before we explore the latest ruling, please enjoy this quick refresher on the Nolen case. A filter was implanted in the plaintiff’s inferior vena cava (IVC) on July 12, 2012. The purpose of the filter was to intercept blood clots that might cause deep vein thrombosis, which is bad, or a pulmonary embolism, which is very bad. The filter got stuck in the IVC, which the plaintiff believed was bad enough to warrant a lawsuit for failure to warn and product defect.

At issue in this most recent opinion in Nolen was the defendant’s motion in limine to exclude evidence that “arose” after the implantation date because such evidence had no bearing on either the design of the filter or any failure to warn. This sort of motion in limine is common. Plaintiffs want to measure a product against perfection, including perfect knowledge that did not exist when the product was used. It is an unfair standard. Have you ever heard President Biden say he wants to be compared “to the alternative, not the Almighty”? We burn a lot of calories at trial asking jurors the same thing on behalf of our clients.

Nolen was governed by the Tennessee Products Liability Act (TPLA), which contains uncommon good sense on this issue. The TPLA looks to whether a product was defective “at the time it left the control of the manufacturer or seller.” Pretty ordinary stuff, right? But wait, it gets better. The TPLA goes on to say that, “[i]n making that determination, the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable.” Tenn. Code Ann. section 29-28-105(b). New information after sale of the product is simply too late.

There was skirmishing between the parties in Nolen as to whether there could be a post-sale duty to warn. No Tennessee court has recognized such a post-sale duty to warn. The plaintiff grabbed hold of a Sixth Circuit case — Fox v., Inc., 930 F.3d 415, 427 (6th Cir. 2019)- interpreting Tennessee law to recognize a narrow claim based on an assumed duty to warn arising after the defendant had already sent one warning on which the consumer relied. Fox was really about a duty to update a warning. And even that was a bone tossed to plaintiffs to make up for the court’s ruling that Amazon was not a seller.

Be that as it may, should Fox inspire a broader post-sale duty to warn? Nope. First, that is a bad rule. How do you think such a rule affects incentives for issuing voluntary post-sale warnings? Second, nothing like that voluntary undertaking occurred in Nolen. Third, the Nolen court followed Erie modesty and declined to predict that the Tennessee Supreme Court would expand upon the Sixth Circuit’s voluntary undertaking theory to create a broad post-sale duty to warn. Whew!

All that being said, the Nolen court refused to say that there could never-ever be post-sale evidence that might be probative. Just as a photograph of a building on Friday might at least suggest the building existed on the prior Monday, there could conceivably be post-sale evidence (of a draft warning, for example) that might demonstrate pre-sale knowledge. (Yes, that is kind of a batty analogy, but it is the one used by the court.) But the plaintiff would need to offer something specific and nonspeculative to make that case. Accordingly, the Nolen court granted the defendant’s motion in limine and ordered the plaintiff not to introduce post-sale evidence without first satisfying the court that an adequate foundation exists.

The good news is that there will likely be no post-sale evidence that passes muster. The bad news is that by keeping the door open a crack, the Nolen decision is of only limited utility in arguing that post-sale evidence should not even be discoverable in the first place.