Judge pares claims in Bard IVC bellwether

A federal judge in Arizona yesterday pared some claims in the third bellwether case involving inferior vena cava filters made by Becton Dickinson (NYSE:BDX) subsidiary C.R. Bard, as the trial entered its 11th day.

It’s the fourth bellwether in the multi-district litigation over the IVC devices, which are designed to prevent blood clots from passing through the body’s largest vein into the heart and lungs. In the first case to go to trial, a federal jury in Phoenix found for plaintiff Sherr-Una Booker, awarding $3.6 million in damages.

Bard prevailed in the second bellwether trial, with the jury finding that the company properly warned of the potential complications and risks associated with the IVC filters. The third case was dismissed after the statute of limitations expired on the claims.

The fourth case, Hyde v. Bard, went to trial last month. Yesterday, Judge David Campbell of the U.S. District Court for Arizona ruled on a Sept. 28 motion for judgment as a matter of law entered by Bard after plaintiff Lisa Hyde rested her case. The company had challenged loss-of-consortium claims by Mark Hyde, the plaintiff’s husband, plus claims for damages for future injuries and costs from Lisa Hyde’s cardiac arrhythmia, strict liability design defect and punitive damages.

Although he allowed three of the claims to stand (loss of consortium, design defect and punitive damages), Campbell tossed the claim for the arrhythmia damages, according to court documents. Hyde had sought to claim the medical cost of an implantable defibrillator, should she need one in the future. Campbell ruled that the law in Wisconsin, where Hyde was implanted with the Bard IVC filter, “holds that future injuries and medical care must be established by a medical probability, not a mere possibility.”

A physician expert witness had testified that Hyde would need to be monitored for arrhythmia and might need a defibrillator at some point, according to the documents.

“This testimony is not sufficient under Wisconsin law to support an award of damages for the cost of a defibrillator or any other medical costs or injuries associated with future cardiac arrhythmia,” Campbell wrote.

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