Earlier this week, we spoke of the impending birth of our soon-to-be standard poodle puppy.  We are delighted to report that the puppies are being born as we type this!   Eight are expected (e-mail us and we will send you a cool x-ray that shows all eight in utero – count the spines and skulls!), and one has arrived.  Dad is white and Mom is silver, and we are told that the litter will likely be a mix of blue (a dark steel grey) and white puppies.  (The genetics of all of this are way over our head – something to do with black plus a dilution factor and both parents carrying white.)  So far, one white girl has arrived.  We won’t know for a month or so which puppy will be ours, so we are beyond excited to see the array of possibilities.

“Excited” may overstate our reaction to today’s case, but we did read it with pleasure.  Nelson v. Bard, 2022 WL 3223188, ___ F.4th ___  (5th Cir. 2022), is a decision on the appeal of the District of Mississippi’s grant of summary judgment for the defendant in an IVC (inferior vena cava) filter case.   IVC filters are placed to prevent blood clots from traveling to the heart, lungs, and brain.  The plaintiff/appellant received his filter “as a prophylactic measure to prevent deep venous thrombosis and pulmonary embolism” when he temporarily stopped taking anticoagulants in preparation for a liver transplant.  Nelson, 2022 WL 3223188 at *2.  Fourteen years later, imaging revealed that the filter had fractured, with fragments penetrating the wall of the IVC and some migrating to other parts of the plaintiff’s body.   Most of the fragments were removed in the course of three surgeries, but one fragment remained in the pulmonary artery.  The plaintiff filed suit in the IVC filter MDL, asserting claims for design defect and failure to warn under the Mississippi Products Liability Act.  The case was remanded to the Southern District of Mississippi, and both sides moved for summary judgment.

The district court granted summary judgment for the defendant, holding that the filter’s warnings were adequate as a matter of law because the instructions for use (“IFU”) that accompanied the product “expressly warned” the plaintiff’s treating physician of the “very complications” the plaintiff suffered.  Id.  As we discussed then, the district court rejected at some length the plaintiff’s argument that the warnings were inadequate because they did compare the complication rates to those of the defendant’s predecessor filters and other manufacturers’ filters, holding that Mississippi law did not “support the conclusion that a failure to provide comparative-risk information renders a warning inadequate.” Id. at *3.   With respect to the design defect claim, the court held that the plaintiff had not adduced evidence linking the design defect his expert identified to the injuries he suffered, and that he had not identified a feasible alternative design.  The plaintiff appealed, resulting in today’s decision.

The Fifth Circuit affirmed the district court’s finding that the filter’s warnings were adequate as a matter of law, emphasizing that the IFU, “in no uncertain terms,” warned that fracture and migration, the “exact complications that allegedly caused [the plaintiff’s injuries,” were “known complications” associated with the filter.  And the plaintiff did not “persuasively argue” otherwise.  Id. at *5.   As the court explained, the district court’s holding was correct because the plaintiff did not “discuss, in any meaningful way, the warning language itself.”  Id.  He did not explain “why the text of the warnings was inadequate;” instead, he relied on the defendant’s internal documents to argue that the defendant knew of, and concealed, risk data, and thereby did not “warn physicians of high complication rates that it was aware of at the time.”   He argued that “the information that was concealed was so egregious that the IFU [was] per se inadequate.”  Id. at *6 (emphasis in original, internal punctuation omitted).  But, the court emphasized, Mississippi law requires failure-to-warn cases to be based upon “the warning label itself – its text and language – rather than internal documents.”  Id.  Because the plaintiff did not address “the language of the warning itself and how it was inadequate,” and because the warning label “warned in two different locations that filter fracture and migration were known complications,” the court held that the plaintiff failed to raise a genuine issue of material fact as to the failure to warn claim.  Id. 

With respect to the design defect claim, the court explained that the MPLA requires proof that the product was defective when it left the manufacturer’s control and that the defect proximately caused the plaintiff’s injuries.  The plaintiff’s expert testified that the filter was defective because it “tilted,” but the plaintiff failed to submit evidence that tied this supposed design defect to the fracturing and migration of the plaintiff’s filter.  In fact, the court pointed out, the expert’s report did explain how a “tilt” could cause the filter to fracture and perforate the IVC.  Since the plaintiff “failed to direct the district court’s attention” to this portion of the report, the appeals court could not consider it.   As the court stated, “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.”   (Because the court affirmed this holding, it did not need to address the “alternative design” holding.)

Lots of good stuff here.  We especially like the court’s rigorous application of good Mississippi precedent confining the warnings analysis to the text of the warnings themselves and leaving company documents – and conjecture based on them – out of the mix.  We also love the court pointing out the plaintiff’s sloppiness in failing to identify the portion of his expert’s opinion that might have saved the design defect claim.   Nelson is a well-reasoned opinion delivering a well-deserved victory for the defendant/appellee.  

Meanwhile, we are now up to three white girls, one white boy, and one blue boy!  We’ll give you the final tally when we next talk to you.  In the meantime, stay safe out there.