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Recently, in describing a decision granting summary judgment in an IVC filter case, we identified some additional analyses we would have liked to have seen:

[W]hile interrelated, we think the concepts of a “compensable injury” and causation are separate.  For instance, an exposure might cause a risk of future injury, but state law may hold that such a risk without present injury is not compensable.  Or a subclinical injury like pleural thickening may not be compensable, in part because of the inconsistency with the principles of accrual of claims for statute of limitations purposes.  Is a medical procedure not required by specific symptoms—regardless of what caused them—itself a compensable injury?  We think not.  A surgery may be part of the damages allegedly related to an injury allegedly caused by the drug/device/exposure, but is not an injury in and of itself.  Gomez did not delve into this either.

That same day—but well after we had set our prescient post to publish—the court in Fuss v. Boston Sci. Corp., No. 2019-02348, 2022 Mass. Super. LEXIS 251 (Mass. Super. Ct. Oct. 20, 2022), did those same analyses in another IVC filter case.  Rather than fall prey to the post hoc ergo propter hoc fallacy that plagues plaintiffs’ causation theories in so many drug and device product liability cases, we will admit this is mere coincidence.  After all, compensable injury seems like an obvious threshold issue in an IVC filter case where perforation of the inferior vena cava (IVC) is the only claimed injury.

Given the facts of Fuss, we will go a step further and say that it would be better if there were a way to get rid of cases without compensable injuries without the time and expense of going through fact and expert discovery and briefing an all-issues summary judgment motion with accompanying Daubert motion.  After a pulmonary embolism, plaintiff had his IVC filter implanted by an experienced vascular surgeon in 2007.  It has remained in place, without embolism or any symptoms tied a complication, for the fifteen years since.  Then plaintiff saw a lawyer advertisement, was sent by lawyers to get a CT scan ordered by a doctor he did not know and never met, and brought a lawsuit over an alleged perforation.  After suing, plaintiff conferred with his implanting surgeon, who, with the benefit of an x-ray, concluded the filter was doing its job and required no treatment or intervention.  In deposition, plaintiff admitted that he had been asymptomatic.  After the parties completed discovery and teed up motions for both summary judgment and exclusion Massachusetts’s version of a Daubert motion on plaintiff’s catchall expert, plaintiff still had never received any treatment or intervention.

Before we get into the Fuss decision, we want to spend a little time on the trigger for this case and so many other cases brought by uninjured people:  plaintiff lawyer advertising.  Around the time the plaintiff in Fuss sued, we reported on efforts by the Federal Trade Commission to rein in plaintiff lawyer advertising, particularly ads that might lead patients to stop taking prescribed medications without appropriate medical guidance.  Unaddressed, at least from the public statements, were the issues of how questionable advertising leads to frivolous litigation, burdening courts and increasing health care costs, and how advertising can lead to unnecessary surgical procedures to, some might say, increase the value of lawsuits against device manufacturers.  Included in the aforementioned “some” is the United States when it has prosecuted doctors and others involved in such schemes. Broader concerns about the negative impacts of plaintiff lawyer advertising have been discussed previously, like here, here, and the posts cited therein, and even states as historically plaintiff-lawyer-centric as West Virginia have taken steps to place some limits on these negative effects.   It is a good thing that nobody performed an unnecessary explant procedure on the plaintiff in Fuss because of the chain of events that started with lawyer advertising.  It is, however, a good example of why the concerns about lawyer advertising are not merely hypothetical.  Unfettered advertising allows lawyers to aggregate cases, including those of uninjured plaintiffs, in the hopes of increasing settlement pressure on defendants whose products are the focus of the advertising.  Even if the burden on the defendant and the court (courts, if it gets appealed) in Fuss did not count, it is hard to deny that plaintiff’s healthcare providers were impacted.  And there is not much about summary judgment in Fuss, absent cost shifting not described in the decision, to deter plaintiff lawyer from continuing this practice.

Off our soapbox and back to Fuss.  “This case raises the question whether an asymptomatic alleged injury that has not altered the plaintiff’s life qualifies as a compensable injury under Ohio law such that plaintiff’s claim may proceed to trial.”  2022 Mass. Super. LEXIS 251, *2.  That issue interests us most, so we will discuss it first even though the court addressed the successful challenge to plaintiff’s expert and independent grounds for summary judgment on each claim first.  Under the Ohio Product Liability Act, compensatory damages may be available for, inter alia, “death, physical injury to person, [and] emotional distress.”  Id. at *29.  Plaintiff offered no case law “suggesting that an asymptomatic perforation can constitute a physical injury.”  Id. at **29-30.  As the Fuss court read them, Ohio cases drew the line between a high white blood cell count and “an asymptomatic medical condition caused by asbestos exposure”—not physical injuries—and increased risk of cancer—physical injury—based on whether the alleged condition affects the ability to “lead a normal life.”  Id. at **30-33 (citation omitted).  Plaintiff had no symptoms, no limits, and no competent testimony supporting a need for future care, so he had no compensable physical injury.  (He tried a last second shift to seeking damages for emotional distress, but Ohio requires a physical injury or severe and debilitating emotional distress, neither of which he had.)

Fuss also addressed challenges to plaintiff’s expert, an interventional radiologist from whom a broad range of opinions to support plaintiff’s various claims were sought.  We will not dwell on the details of this part of Fuss, but some recurring patterns could be seen,  First, the expert had very limited experience with this particular filter back during his residency, preferred other brands of filters, and had a practice focused on removing filters placed by others.  As a clinician with no particular engineering or design background, he lacked the qualifications to opine on purported design defects.  Id. at **8-14.  The same went for his failure to test opinion.  Id. at **22-23.  His opinion on alternative design was also inadmissible because he did not analyze the risks of his preferred filter, which is required for an alternative design under the Ohio Product Liability Acts.  Id. at **14-16.  His warnings opinions were excluded as beyond his qualifications as a clinician and unreliable, because he did not know the standards for what is supposed to be included in Instructions for Use and his criticisms amounted to mere personal views.  Id. at **16-20.  He was also precluded from opining on warnings causation because he lacked knowledge of what the implanting surgeon knew or how he would have acted.  Id. ay **20-21.  (We prefer the simpler route that an expert should not be opining on this issue, which the jury can decide based on the implanter’s testimony and other fact evidence.)  In addition, his present and future injury opinions were excluded as unreliable, in part because he made up his own definition of a “perforation.”  Id. at **21-22.

With no injury and no admissible expert opinions on key issues, it is not surprising that summary judgment was appropriate as to each of plaintiff’s asserted claims.  Despite an opportunity for fact and expert discovery, Fuss was about as unsupported as a case can be, but we want to visit one more issue.  Plaintiff sued in 2019 over a 2007 implanted device with no overt failure, onset of symptoms, or intervention within the three year statute of limitations period applicable in Massachusetts (or two years under Ohio law).  How was it timely filed?  (If Ohio’s ten year statute of repose applied, then this case would be barred anyway.  Because it was not litigated, we will not dive into whether it would have applied.)  Equally persuasive arguments could be made that his claim did not accrue more than two or three years before he sued and that it did not accrue within those two or three years.

This is the rub with litigation generated by lawyer advertising and testing on asymptomatic people done through lawyers.  Especially if, like the Fuss plaintiff did after he sued, the plaintiff goes to a treating physician with a concern about what the lawyers told him and is reassured that he is not injured and needs no intervention, would a reasonable person in the plaintiff’s position conclude he has been injured by the defendant’s product?  Probably not, but there is also no conceivable reason why public policy would favor allowing lawsuits without injury to be filed on implanted devices that have been doing their job for ten, fifteen, or twenty years.  The public policy analysis should not change because plaintiff lawyers decide to start advertising and setting up diagnostic testing to uncover “injuries” in asymptomatic potential plaintiffs.