MILTON v. C R BARD INC et al
Filing
71
ORDER granting in part and denying in part 61 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 6/17/2021. (chc)
Case 5:14-cv-00351-TES Document 71 Filed 06/17/21 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GARY MILTON,
Plaintiff,
CIVIL ACTION NO.
5:14‐cv‐00351‐TES
v.
C.R. BARD, INC., et al.,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART BARD’S
PARTIAL MOTION FOR SUMMARY JUDGMENT
Plaintiff Gary Milton (“Milton”) sued Defendants C.R. Bard and Bard Peripheral
Vascular, Inc. (collectively referred to as “Bard”) for damages he claims he suffered
because of using Bard’s “Bard G2X” inferior vena cava (“IVC”) filter. [Doc. 1]. Before
the Court is Bard’s Partial Motion for Summary Judgment [Doc. 61] as to Milton’s
failure‐to‐warn and punitive damages claims.
BACKGROUND
On July 1, 2009, Milton was involved in a single‐vehicle rollover accident. See
[Doc. 62, p. 2]. Milton was ejected from the vehicle and sustained injuries to his pelvis,
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ribs, lower extremities, and spleen. [Id.]. The next day, Dr. Michelle Lung placed a Bard
G2X1 IVC filter in Milton because of his high risk for pulmonary embolism. [Id.].
On March 18, 2013, Dr. Brewster was the attending surgeon for Milton when
Milton underwent placement of an aortic cuff via his right common femoral artery at
the Atlanta VA Medical Center. [Doc. 66‐38, p. 2]. Dr. Brewster determined that
placement of the aortic cuff was necessary because Milton’s IVC filter had perforated
through the caval wall. [Id. at 2–3]. One of the filter’s tines was piercing through the
aortic wall causing a pseudoaneurysm. [Id. at 3]. Dr. Brewster saw the existence of the
pseudoaneurysm as placing Milton at a higher risk for internal bleeding that could
result in serious injury or death. [Id.]. Dr. Brewster decided to place an aortic cuff next
to the tines of the IVC filter to seal the aortic pseudoaneurysm from within the aorta.
[Id.]. Dr. Brewster and his team completed this phase of Milton’s treatment, aiming to
actually remove the IVC later by way of a laparotomy. [Id.]. On May 23, 2014, Milton’s
IVC filter was removed. [Doc. 66‐1, p. 5].
Bard’s IVC filters are designed to prevent large blood clots in the lower part of
the body from traveling to the heart, lungs, or brain, and thereby reduce the risk of a
life‐threatening pulmonary embolism. [Doc. 40, p. 3]. Milton later learned that his IVC
The “G2X” filter at issue in this case is part of the Bard “G2” filter line. The G2X is essentially the same
as the G2 filter, but with an added snare hook that is meant to improve the retrievability of the filter. See
[Doc. 51, p. 3]; [Doc. 66‐1, p. 19 (“The G2X filter was a very slight modification to the G2, identical in
every way save for the addition of a snare hook intended to improve retrievability.”)].
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filter had tilted so that its struts penetrated his IVC and protruded into his abdominal
aorta. [Doc. 51, p. 2]. Milton says this caused a pseudoaneurysm, and he had the filter
removed in May 2014. [Id.].
Milton’s case originated in the Middle District of Georgia. [Doc. 1]. The United
States Judicial Panel on Multidistrict Litigation then transferred Milton’s case to the
District of Arizona for centralized proceedings.2 [Doc. 25]. Upon completion of the
centralized proceedings, the United States Judicial Panel on Multidistrict Litigation then
remanded Milton’s case back to the Middle District of Georgia. [Doc. 27].
After case‐specific discovery, Bard filed a Motion for Summary Judgment [Doc.
40] and contemporaneously filed a motion to exclude the testimony of Dr. McMeeking
[Doc. 41]. Milton filed a Response to Bard’s Motion for Summary Judgment [Doc. 51]
and responded to the motion to exclude Dr. McMeeking’s testimony [Doc. 50]. In
addition to replying to Milton’s response to its two other motions, Bard also filed a
Motion to Strike the testimony of Dr. Brewster [Doc. 57]. The Court denied Bard’s
motion to exclude Dr. McMeeking’s testimony [Doc. 50] and Motion to Strike the
testimony of Dr. Brewster [Doc. 57] and ordered discovery to be re‐opened for 60 days
for the limited purpose of deposing Dr. Brewster. [Doc. 60].
Milton brought claims against Bard under the following theories: negligence,
In Re: Bard IVC Filters Products Liability Litigation (MDL 2641).
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failure‐to‐warn (negligence and strict products liability), design‐defect,3 manufacturing
defect, breach of implied warranty of merchantability, negligent misrepresentation, and
punitive damages. [Doc. 1, ¶¶ 108–69]. Milton withdrew his negligence and negligent
misrepresentation causes of action. [Doc. 51, p. 15]. Milton also withdrew his breach of
implied warranty of merchantability and manufacturing defect claims. See [Doc. 61‐1, p.
1]. Therefore, only Milton’s failure‐to‐warn (strict products liability), design‐defect
(strict products liability), and punitive damages claims remain.
Bard’s updated Motion for Partial Summary Judgment [Doc. 61] asks the Court
to dismiss Milton’s failure‐to‐warn and punitive damages claims, as well as Milton’s
claims for damages as to his abdominal pain. See [Doc. 61, p. 1]. Thus, if the Court
grants Bard’s motion in full, Milton will be left with only a design‐defect claim for trial.
DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute is genuine if the evidence would allow a
reasonable jury to return a verdict for the nonmovant and a fact is material if it “might
affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
Bard states in its Motion that it is unsure whether Milton’s design‐defect claim is sought under a strict
liability or negligence theory, so it addresses both theories. See [Doc. 61, p. 2 n. 2].
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considering this motion, “the evidence of the [nonmovant] is to be believed, and all
justifiable inferences are to be drawn in [the nonmovant’s] favor.” Id. at 255. However,
the Court need not draw “all possible inferences” in favor of the nonmovant. Horn v.
United Parcel Servs., Inc., 433 F. App’x 788, 796 (11th Cir. 2011).
The movant “bears the initial burden of informing the district court of the basis
for its motion[] and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Jones v. UPS
Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The burden then shifts to the nonmovant “to rebut that showing by
producing affidavits or other relevant and admissible evidence beyond the pleadings.”
Jones, 683 F.3d at 1292 (quoting Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1315 (11th Cir. 2012)).
The Court finds the recent Eleventh Circuit summary judgment analysis in
Sconiers v. Lockhart highly instructive in this case:
Summary judgment is not a time for fact‐finding; that task is reserved for
trial. See, e.g., Tolan v. Cotton, 572 U.S. 650, 655–57, 134 S.Ct. 1861, 188
L.Ed.2d 895 (2014). Rather, on summary judgment, the district court must
accept as fact all allegations the non‐moving party makes, provided they
are sufficiently supported by evidence of record. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). So when
competing narratives emerge on key events, courts are not at liberty to pick
which side they think is more credible. See Feliciano v. City of Miami Beach,
707 F.3d 1244, 1247 (11th Cir. 2013). Indeed, if “the only issue is one of
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credibility,” the issue is factual, and a court cannot grant summary
judgment. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742–43 (11th Cir.
1996).
946 F.3d 1256, 1263 (11th Cir. 2020).
B.
Bard’s Partial Motion for Summary Judgment
1.
Failure to warn
Bard argues that Milton’s failure‐to‐warn claim fails under the learned
intermediary doctrine. See [Doc. 61, pp. 7–11]. Milton responds that Bard provided
Milton’s physician with an inadequate warning, and thus the learned intermediary
doctrine does not defeat his failure‐to‐warn claim. See [Doc. 66, pp. 6–10]. “In standard
products liability cases premised on a failure to warn, Georgia law insists that a plaintiff
show that the defendant had a duty to warn, that the defendant breached that duty, and
that the breach proximately caused the plaintiffʹs injury.” Dietz v. Smithkline Beecham
Corp., 598 F.3d 812, 815 (11th Cir. 2010) (citing Wheat v. Sofamor, S.N.C., 46 F. Supp. 2d
1351, 1362 (N.D. Ga. 1999)); Cisson v. C.R. Bard, Inc., No. 2:11–cv–00195, 2013 WL
5700513, at *8 (S.D.W. Va. Oct. 18, 2013) (“Proving causation [under Georgia law]
consists of . . . the plaintiffs [showing] that Dr. Raybon would not have implanted the
Avaulta Plus if Bard had provided the warnings the plaintiffs allege should have been
provided.”).4
The parties agree that Georgia substantive law applies in this diversity‐jurisdiction case. See [Doc. 51];
[Doc. 61, p. 6].
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Under Georgiaʹs learned‐intermediary doctrine, a medical device manufacturer
“does not have a duty to warn the patient of the dangers involved with the product, but
instead has a duty to warn the patientʹs doctor, who acts as a learned intermediary
between the patient and the manufacturer.” In re Mentor Corp. ObTape Transobturator
Sling Products Liability Litigation, 711 F.Supp.2d 1348, 1365‐66 (M.D. Ga. 2010) (quoting
McCombs v. Synthes, 587 S.E.2d 594, 595 (Ga. 2003)). In other words, Milton’s failure‐to‐
warn claim depends not on the sufficiency of any warning Bard gave to Milton, but on
the warning Bard gave to Dr. Lung—the physician who implanted Milton’s G2X Filter.
“The rationale for the doctrine is that the treating physician is in a better position to
warn the patient than the manufacturer, in that the decision to employ [a medical
device] involves professional assessment of medical risks in light of the physicianʹs
knowledge of a patientʹs particular need and susceptibilities.” Id. at 1366 (quoting
McCombs, 587 S.E.2d at 595). The warnings to the doctor “must be adequate or
reasonable under the circumstances of the case.” Id. (quoting McCombs, 587 S.E.2d at
595). “If the warning was inadequate, the plaintiff must show that the deficient warning
proximately caused the alleged injury to prevail.” Id. at 1366. Therefore, the Court’s
analysis proceeds in two steps. First, the Court will consider whether the warning was
inadequate. If the Court is unable to find as a matter of law that the warning was
adequate, the Court will next consider whether the deficient warning proximately
caused the alleged injury.
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i.
Adequacy of warning
Bard first argues that it had no duty to warn Milton’s physician of risks already
known to the medical community. See [Doc. 61, pp. 7–8]. Bard points to testimony from
Dr. Brewster that provides the risks that all IVC filters carry are known to the medical
community, including perforation. [Id. at p. 8]. Specifically, Dr. Brewster opined in his
deposition that “I believe it’s common knowledge that, over time, many of these IVC
filters have problems of perforation.” [Doc. 64, p. 7:20–22]. In other words, Bard argues
that Dr. Lung knew of the risks generally associated with IVC filters, the same risks
disclosed on the Bard G2X IFU, [Doc. 66‐1, p. 2]—the boilerplate warning that
accompanies the filter—and that general warning is adequate and Milton’s failure‐to‐
warn claim thus fails.
Milton responds that the Court should let a jury answer the question of whether
the warning to physicians was sufficient. See [Doc. 66, pp. 6–8]. Specifically, Milton
points to multiple cases where district courts reasoned that just because the risks of IVC
filters generally—such as perforation risk—are common knowledge among the medical
community does not necessarily mean that the increased risk of the G2X filter are
common knowledge. [Doc. 66, p. 7]. In other words, Milton argues that the issue here is
not whether Bard warned of the dangers associated with IVC filters generally, but
whether Bard adequately warned of the risks associated with the G2X Filter—the type
placed in Milton’s IVC. Therefore, argues Milton, it is a question for the jury whether
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Bard had a duty to disclose the increased risk associated with Milton’s G2X filter and
whether that warning was sufficient. [Id.].
The parties hotly dispute whether the G2X filter presents higher risks than IVC
filters generally. Compare [Doc. 62, p. 4 (“Plaintiff has no evidence that the G2 or G2X
Filter has risks higher than those reported [in the 2017 report] regarding IVC Filters.”)]
with [Doc. 66‐1, pp. 7–8, 18–21].5 Milton puts forward evidence that shows the “failure
rate for the G2 filter was approximately 14 times that of the SNF,” [Doc. 66‐1, p. 18], the
“G2X suffered from similar rates of complications as the . . . G2 filters,” [Doc. 66‐1, p.
20], that “the G2 and G2X filters had significantly higher rates of migration, tilt, and
perforation than the Recovery,” [Doc. 66‐1, p. 20], and that “[d]espite these known risks,
Bard excluded from the G2X’s Instructions for Use (‘IFU’) any information relating to
complications or rates of reported complications specific to the G2X filter, the G2
platform of filters, or Bard’s entire line of filters, offering only a short list of ‘known
complications’ found in IVC filters generally.” [Doc. 66‐1, p. 20].
In Cason v. C.R. Bard, Inc., the plaintiff argued, as Milton does here, that just
because Bard’s IFU provided a list of warnings related to the IVC filters generally, of
Milton relies heavily on data specific to the G2 Filter when showing the complication risk of the G2X. See
[Doc. 66‐1, pp. 19–21]. Because the G2 and the G2X are nearly identical and purportedly share a similar
complication rate, and giving Milton, as the nonmovant, the benefit of “justifiable inferences,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the Court is satisfied that Milton has put forth evidence
showing the G2X has a higher complication rate than IVC filters generally. Milton’s reliance on G2 data is
something Bard will be free to address on cross examination.
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which the treating physician was aware, there was nonetheless a failure to warn of the
higher risk of the G2 Filter. No. 1:12‐cv‐1288‐MHS, 2015 WL 9913809, at *3 (N.D. Ga.
Feb. 9, 2015). The court concluded that since “there is evidence that the G2 Filter has a
significantly greater propensity to fracture, migrate, and perforate the IVC than other
IVC filters,” “there is a genuine issue for trial as to whether the warnings provided by
Bard were adequate.” Id. at *4.
The Bard MDL Court applied Georgia law to reach the same conclusion. See In re
Bard IVC Filters Prods. Liab. Litig., 2017 WL 5625548, at *5 (D. Ariz. Nov. 22, 2017) (“The
Court is not holding, as a matter of Georgia law, that manufacturers must always
disclose how the risks of their product compare to the risks of other products. But
presumably there is a point where the risks of a product so depart from the norm that a
failure to disclose them constitutes an inadequate warning. Whether that point was
reached in this case will be for the jury to decide.” (citing Cason, 2015 WL 9913809, at
*3)).
Like the MDL Court and the Northern District of Georgia, the Court finds that
because Milton presents evidence that his G2X Filter had higher risks of complication
than IVC filters generally, it is a jury question whether the warning was adequate. As
explained above, Milton places facts in the record that purport to show that the G2X
Filter has a complication rate 14 times higher than the SNF—another of Bard’s filters.
While Bard is of course free to challenge this assertion at trial, the Court has no trouble
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finding that a jury should have a chance to decide whether Bard should have had to
warn of the higher risk associated with the G2X. Therefore, because the Court cannot
find as a matter of law that the warning to Milton’s physician was adequate, it must
proceed to the next step of the analysis and consider whether the deficient warning was
the proximate cause of Milton’s harm.
ii.
Proximate cause
Bard may still be entitled to summary judgment if it can show that the deficient
warning was not the proximate cause of Milton’s injury. To prove the proximate cause
element of a failure to warn claim under Georgia law, a plaintiff must prove: “(1) that
the prescribing physician was not aware of the alleged risk at issue, and (2) but for the
inadequate warning, the physician would not have used or prescribed the product.”
Watkins v. Eli Lilly & Co., No. 1:08‐CV‐1665, 2010 WL 11493785, at *8 (N.D. Ga. Mar. 31,
2010) (citing Wheat v. Sofamor, S.N.C., 46 F. Supp. 2d 1351, 1363 (N.D. Ga. 1999)); accord
Porter v. Eli Lilly & Co., 291 F. App’x 963, 964 (11th Cir. 2008). “If a plaintiff fails to meet
this burden, the causal connection is broken, and plaintiff cannot prove that the breach
was the proximate cause of his injuries.” Watkins, 2010 WL 11493785, at *8. Bard argues
that Milton does not meet this burden because Dr. Lung—Milton’s prescribing
physician—was already aware of the specific type of risk that came to pass in Milton
before she treated Milton, and that Milton cannot show that “but for” the inadequate
warning, Dr. Lung would not have prescribed the product. See [Doc. 61, p. 9]. Milton
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counters by pointing out that Dr. Lung testified that had she known of the higher rates
of complications associated with the G2X Filter, she would not have implanted it.
In Cason, the defendants argued at summary judgment that when the implanting
physician had knowledge that the filter could tilt, fracture, migrate, or perforate, any
failure to warn of these risks could not be the proximate cause of the plaintiff’s injuries.
No. 1:12‐cv‐001288‐MHS, 2015 WL 9913809, at *6. The Northern District disagreed
because the implanting physician testified that he would have wanted to know if the G2
Filter had a significantly higher risk of complication than other IVC filters. Id. The court
found that the implanting physician’s testimony was “sufficient evidence of causation
at the summary judgment stage, because ‘it can be inferred that [Dr. Sheline] would not
have implanted the [G2 Filter] had he known of the information.’” Id. at *6–7 (quoting
In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:10‐cv‐01224, 2013 WL
2431975, at *7 (S.D. W.Va. June 4, 2013)).
Dr. Lung—Milton’s implanting physician—testified in her deposition that even
though she was aware of the risks inherent in the use of IVC filters generally, she was
not provided any information regarding the comparatively higher rates of
complications in the G2X filter as compared to other IVC filters on the market. [Doc. 66‐
1, ¶ 26]. She testified that she would want to know if the G2X filter had higher rates of
complications than other filters, and that had Bard disclosed higher rates of
complications associated with the G2X, it would have led her to choose a different IVC
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filter for Milton. [Id. at ¶¶ 26–33]. Bard attempts to counter this by arguing that when
deposing Dr. Lung, Milton never gave her the underlying information that shows the
G2X has a higher complication rate, so, argues Bard, her testimony that she would not
have implanted the filter is merely speculation and insufficient to survive a summary
judgment challenge on proximate cause grounds. See [Doc. 61, pp. 10‐11].
Bard’s argument falls short. Dr. Lung’s testimony is that had she known the G2X
had a “much higher” complication rate than other filters, she would not have implanted
it. See [Doc. 66‐1, p. 21]. Indeed, Dr. Lung testified that had she known Bard’s
retrievable filters migrate or tilt at a rate four to five times higher than Bard’s other
filters, she would not have implanted Milton with the G2X. [Id.]. And, again, Milton has
introduced evidence that purportedly shows the G2X has a complication rate 14 times
higher than one of Bard’s other IVC filters—the SNF. [Doc. 66‐1, p. 18]. Bard will have
an opportunity to question Dr. Lung at trial as a jury determines whether Milton has
met his burden as to the proximate cause element.
In sum, the Court reaches the same conclusion as the court in Cason. Milton has
put forth evidence sufficient to survive a summary judgment challenge on the issue of
proximate causation.
2.
Causation of abdominal pain and other injuries
Bard also argues that Milton’s claims for abdominal pain and other injuries fail as
a matter of law because Milton proffers no expert testimony to establish causation as to
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any of those injuries. See [Doc. 61, pp. 11–14]. Milton concedes that he has not
designated a medical doctor as a retained expert hired specifically to testify as to
medical causation in this case, but argues that the lack of a retained expert is not
dispositive since Milton may satisfy his burden of proof in other ways. See [Doc. 66, p.
10].
Milton points to the testimony of Dr. Brewster and Dr. Patel as his causation
expert testimony. See [Doc. 66, p. 11]. Bard argues that Dr. Brewster never actually
testified as to the abdominal or other injuries Milton seeks damages for and limits his
testimony to the filter’s piercing of the caval wall which caused the pseudoaneurysm
and necessitated placement of the aortic cuff. And Bard argues that the testimony of Dr.
Patel is not properly before this Court.
First, the Court will consider whether Dr. Brewster’s testimony establishes
causation. Milton designated Dr. Brewster as a non‐retained testifying expert in this
case. See [Doc. 66‐1, p. 22]. Federal Rule of Civil Procedure 26(a)(2)(C) permits treating
physicians, when properly designated as a non‐retained expert, to testify as both a fact
and non‐retained expert witness. This was a focal point of the Court’s previous order in
this case when it re‐opened discovery for the purpose of allowing the parties to depose
Dr. Brewster. See [Doc. 60, pp. 19–21].
Georgia law permits treating physicians to offer testimony that implicates their
“special experience as a physician” so long as the testimony is “an account of their
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observations during the treatment or if it is offered for the purpose of explaining the
physician’s decision‐making process or the treatment it provided.” Eberhart v. Novartis
Pharms. Corp., 867 F. Supp. 2d 1241, 1252–53 (N.D. Ga. 2011). Dr. Brewster testified that
the perforating strut on Milton’s G2X IVC Filter more likely than not caused the
pseudoaneurysm. [Doc. 66‐1, p. 22]. Dr. Brewster also opines that the strut necessitated
the surgical placement of an aortic cuff. [Id. at p. 13]. The parties seem to agree that Dr.
Brewster’s testimony establishes causation as to the pseudoaneurysm and the required
placement of the aortic scuff. Milton and Bard disagree about whether Dr. Brewster’s
testimony establishes causation as to Milton’s abdominal pain, or to any other injury
apart from the pseudoaneurysm and the required placement of the aortic strut. See [Id.
at pp. 13–14]. Consider the following excerpt from Dr. Brewster’s deposition:
Q: Doctor, is that finding of a strut and a pseudoaneurysm in the aorta of
medical significance to you?
A: It could contribute to abdominal pain and it worries me as to the stability
of the aorta of that area.
Q: And can you explain what you mean by that, sir?
A: Abdominal pain is something that can impair our patients and is not
uncommon with the IVC filters going through the vena cava and irritating
other areas.
[Doc. 64, pp. 3–4 (emphasis added)]. Dr. Brewster does not testify that the complications
resulting from Milton’s G2X Filter actually caused his abdominal pain—he merely
testifies that it is possible it did. Nor does any other portion of Dr. Brewster’s
declaration or deposition show him testifying that Milton’s filter caused anything other
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than the pseudoaneurysm or cuff placement. Therefore, Dr. Brewster’s testimony
establishes causation as to those injuries alone.
Next, the Court will determine whether it may consider Dr. Patel’s testimony.
Bard points out that Dr. Patel’s declaration was never served on Bard and was not filed
with Milton’s response materials. [Doc. 70, p. 7]. Indeed, Milton’s Controverting
Statement of Facts [Doc. 66‐1] contains no reference to a Dr. Patel at all. Milton
seemingly tries to group Dr. Patel’s testimony in with Dr. Brewster’s and cites to
portions of the record that contain references to Dr. Brewster and have no mention of
Dr. Patel. See [Doc. 66, pp. 10–11]. Therefore, as best the Court can tell, the testimony of
Dr. Patel is not properly before the Court and may not be considered. See M.D. Ga. L.R.
56 (“Material facts not supported by specific citation to particular parts of materials in
the record … will not be considered by the court.”); Fed. R. Civ. P. 56(c)(1) (“A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record”); Wallace v. Smith, 297 F. App’x
915, 916 (11th Cir. 2008) (“[M]ere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.”).
In sum, the Court GRANTS Bard’s Motion for Summary Judgment as to
Milton’s claims for damages flowing from anything other than the pseudoaneurysm
and the placement of the aortic cuff.
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3.
Punitive damages
Bard argues that Milton’s claim for punitive damages fails as a matter of law. See
[Doc. 61, pp. 15–16]. Under Georgia law, “[p]unitive damages may be awarded only in
such tort actions in which it is proven by clear and convincing evidence that the
defendantʹs actions showed willful misconduct, malice, fraud, wantonness, oppression,
or that entire want of care which would raise the presumption of conscious indifference
to consequences.” O.C.G.A. § 51‐12‐5.1(b). “In any case in which punitive damages are
claimed, the trier of fact shall first resolve from the evidence produced at trial whether
an award of punitive damages shall be made.” O.C.G.A. § 51‐12‐5.1(d)(1). “Numerous
Georgia cases have held that punitive damages are available where a manufacturer
knows that its product is potentially dangerous and chooses to do nothing to make it
safer or to warn consumers.” Cason, No. 1:12‐cv‐1288‐MHS, 2015 WL 9913809, at *3
(quoting Cisson v. C.R. Bard, Inc., No. 2:11‐cv‐00195, 2013 WL 5700513, at *13 (S.D. W.Va.
Oct. 18, 2013) (applying Georgia law)).
Milton argues that Bard knew the G2X Filter had higher risk of complications
that could result in death or serious injury, and actively sought to conceal this
information from the public. [Doc. 66, pp. 12‐13]. Bard counters that punitive damages
are inappropriate when based on alleged conduct that did not contribute to or cause
Milton’s injury. [Doc. 70, pp. 8‐9]. True, a “defendant’s dissimilar acts, independent
from the acts upon which liability was premised, may not serve as the basis for punitive
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damages.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003). The Court
finds that the conduct that serves as the basis for Milton’s punitive damages claim—
Bard’s failure to warn of the risks associated with the G2X Filter and calculated decision
not to do so—is not an independent or separate act from the actions serving as the basis
of Milton’s failure‐to‐warn claims against Bard. Even Bard seems to acknowledge this.
Bard’s argument for why an award of punitive damages is inappropriate as a
matter of law is derivative of its argument for why Milton’s failure‐to‐warn claim fails.
See [Doc. 70, p. 8 (arguing that Milton was not injured by a failure to warn and that
punitive damages cannot be based on conduct that did not contribute to his injury)].
The Ninth Circuit considered a similar situation and applied Georgia law to conclude
the evidence was sufficient to support a jury award of punitive damages. See In re Bard
IVC Prod. Liab. Litig., 969 F.3d 1067, 1077 (9th Cir. 2020). The court’s analysis is helpful
here:
Bardʹs challenge to the punitive damages award is largely derivative of its
argument that it had no duty to warn of comparative risks. In Bardʹs view,
punitive damages are inappropriate because it sold a product that was “not
defective and sold with an adequate warning.” But the jury found that the
warning was not adequate. As the district court explained, “[t]he evidence
supported a finding that despite knowing that G2 filters placed patients at
a greater risk of harm” than other available filters, “Bard chose not to warn
physicians and instead downplayed the risk.” Although it would have been
possible for the jury “to draw a contrary conclusion,” we conclude that the
evidence was adequate to support the juryʹs award of punitive damages.
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Id. As discussed in the failure‐to‐warn section above, Milton puts forth evidence that
shows Bard chose not to warn of higher risks associated with the G2X Filter implanted
in Milton. This is enough to let the jury consider the question of punitive damages.
Bard also argues that Milton’s punitive damages claim fails because it complied
with applicable government regulations and no other culpable conduct is shown. See
[Doc. 61, p. 15]. Milton disputes whether Bard complied with the regulations as it
pertains to the G2X Filter, [Doc. 66, pp. 13‐14], but even assuming Bard did, Milton’s
punitive damages claim survives Bard’s summary judgment challenge. The Georgia
Supreme Court has articulated “a general rule” that punitive damages are “improper
where a defendant has adhered to . . . safety regulations.” Stone Man, Inc. v. Green, 435
S.E.2d 205, 206 (1993). But that rule does not “preclude[ ] an award of punitive damages
where, notwithstanding the compliance with applicable safety regulations, there is
other evidence showing culpable behavior.” General Motors Corp. v. Moseley, 447 S.E.2d
302, 311 (Ga. 1994), abrogated on other grounds by Webster v. Boyett, 496 S.E.2d 459 (Ga.
1998). When a failure to warn reflects “a conscious disregard for the safety of others,”
punitive damages may be appropriate. Zeigler v. CloWhite Co., 507 S.E.2d 182, 185 (Ga.
Ct. App. 1998).
Milton puts forth evidence that Bard knew about the higher risks associated with
the G2X Filter yet chose not to warn of these risks which would constitute “conscious
disregard for the safety of others.” Id. A jury should have a chance to determine
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whether that version of the facts is correct, and, if it does, decide whether to award
Milton punitive damages. Therefore, Bard’s motion is due to be DENIED and Milton’s
claim for punitive damages may proceed to determination by a jury.
CONCLUSION
In conclusion, Bard’s Motion for Summary Judgment [Doc. 61] is GRANTED in
part and DENIED in part. Accordingly, Milton’s claims for failure to warn, defective or
negligent design, and punitive damages shall proceed to a trial by jury, and Milton’s
claims for damages stemming from anything other than his pseudoaneurysm and aortic
cuff placement are dismissed. The Court will place the case on the next available trial
calendar.
SO ORDERED, this 17th day of June, 2021.
S/Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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