Henley et al v. CR Bard Inc et al

Filing 59

ORDER signed by Judge Lynn Adelman on 12/4/19 that the defendants' motion for summary judgment 39 is GRANTED. Defendants' motion to exclude certain opinions by Robert M. McMeeking, Ph.D., 38 is DENIED as MOOT. Defendants' motion t o restrict certain exhibits in support of their motion to exclude certain opinions by Robert M. McMeeking, Ph.D., 37 is GRANTED. Plaintiff's motion to restrict Exhibit I in opposition to the defendants' motion to exclude certain opinions by Robert M. McMeeking, Ph.D., 46 is GRANTED. Defendant' motion to restrict Exhibit HH 53 is GRANTED. Defendants' motion to restrict certain materials filed in support of their motion for summary judgment 40 is GRANTED IN PART and DEN IED IN PART. The motion is granted to the extent that ECF Nos. 41-15, 41-16, 41-19, 41-20, and 41-21 may remain restricted. The motion is denied to the extent that the Clerk of Court shall remove the restrictions from ECF Nos. 41-4, 41-5, 41-6, and 4 1-7. Motion to restrict the materials 48 is DENIED. Clerk of Court shall not immediately remove the restrictions from the associated documents. Defendants shall have 21 days from the date of this order to show good cause for restricting parts of the plaintiff's response materials. (cc: all counsel) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANGELA HENLEY,
Plaintiff,
v.

Case No. 14-C-0059

C.R. BARD, INC., et al.,
Defendants.
______________________________________________________________________
DECISION AND ORDER
Angela Henley alleges that she was injured by a defective medical device
manufactured and sold by the defendants, C.R. Bard, Inc., and Bard Peripheral
Vascular, Inc. (collectively, “Bard”). After she filed her complaint, the Judicial Panel on
Multidistrict Litigation transferred the case to the United States District Court for the
District of Arizona for consolidated pretrial proceedings. Those proceedings have
concluded, and the case has been returned to this court. Before me now are Bard’s
motion for summary judgment on the plaintiff’s claims, Bard’s motion to exclude certain
opinions by one of the plaintiff’s experts, and the parties’ motions to seal certain
materials filed in connection with these motions.
The motion for summary judgment is based on several grounds, but I will discuss
only one of them—the statute of limitations—because it is dispositive. Moreover,
because the plaintiff’s expert testimony does not relate to the statute-of-limitations
defense, I will deny the motion to exclude the testimony as moot.
I. BACKGROUND
The plaintiff needed surgery in June 2010. At that time, she had recently been
treated for a pulmonary embolism, a condition in which one or more arteries in the lungs

becomes blocked by a blood clot. Because of her medical history, the plaintiff’s doctors
recommended that she receive a medical device known as an inferior vena cava filter,
or “IVC filter,” prior to the surgery. This is a filter that is placed in a large vein (the
inferior vena cava) that carries blood from the lower part of the body to the heart. Its
purpose is to catch blood clots that form in the legs as they travel though the vein and
prevent them from reaching the heart and lungs.
IVC filters can be placed in a patient temporarily or permanently. In the plaintiff’s
case, her doctors recommended that she receive a temporary filter—also known as a
“retrievable” filter—that would be removed two weeks after the surgery. Bard
manufactures and sells such a filter, known as the Bard G2 Filter. The filter is conical in
shape and consists of a main shaft to which twelve struts (six “arms” and six “legs”) are
attached. Once the filter is implanted in the vein, its arms and legs open and anchor the
filter to the walls of the vein. It looks like this:

On June 11, 2010, Dr. Satchidanand Hiremath implanted a Bard G2 Filter into
the plaintiff’s inferior vena cava. A short time later, the plaintiff began experiencing
abdominal/pelvic pain, back pain, and right hip/thigh pain, which she attributed to the
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filter. On July 5, 2010, during a follow up visit with one of her physicians, the plaintiff
reported experiencing “some mid to right abdominal discomfort since the placement of
the filter.” Def. Prop. Finding of Fact (“PFOF”) ¶ 10.
On July 12, 2010, another physician, Dr. Moises Yoselevitz, performed a
procedure in which he attempted to retrieve the filter. However, he was unable to do so
because the filter exhibited “significant tilting.” Def. PFOF ¶ 11; see also Compl. ¶ 101
(“On or about July 12, 2010, Plaintiff underwent removal, but it was ultimately
unsuccessful because of the significant tilt of the filter.”). As of this date, the plaintiff
knew that Dr. Yoselevitz could not retrieve the filter and that the filter was tilted. Def.
PFOF ¶¶ 11–12.
On July 16, 2010, during a consultation with Dr. James Walker, Ms. Henley
reported that “since the filter placement, she has experienced significant right lower
back pain.” Id. ¶ 13. Dr. Walker’s consultation record notes: “Impression: Tilted inferior
vena cava filter causing low back pain.” Id.
On July 21, 2010, Dr. Walker performed a procedure in which he attempted to
remove the filter. However, because of the “severe tilting of the device,” he was unable
to retrieve it. See Dr. Walker’s Notes, ECF No. 41-5 at p. 20 of 32. The plaintiff
describes the procedure as being “excruciatingly painful.” Pl. PFOF ¶ 233. Like Dr.
Yoselevitz, Dr. Walker noted after the procedure that the filter exhibited “significant
tilting.” Def. PFOF ¶ 14. He also noted that one of the legs was displaced “slightly
cranial” and that the plaintiff experienced abdominal pain during the procedure. ECF No.
41-5 at p. 20 of 32.

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After the procedure was over, Dr. Walker told the plaintiff that he was unable to
retrieve the filter because it was tilted. Pl. Dep. at 89, ECF No. 41-6. However, he also
told her that the filter could remain in her vein and would continue to prevent blood clots
from reaching her heart and lungs. Id. The plaintiff was “appalled” by this news because
she wanted the filter removed from her body. Id. The plaintiff was also “devastated”
because she thought the filter was going to be temporary but now realized she was
“going to be stuck with it for the rest of [her] life.” Id. at 91.
On July 22, 2010, the plaintiff saw one of her other physicians. The office notes
for this visit state that the plaintiff continued to experience abdominal discomfort that
she attributed to the filter. The notes state that a CT scan showed no other abnormality
that could account for the pain, that the plaintiff experienced abdominal pain during Dr.
Walker’s attempt to remove the filter, and that the plaintiff’s abdominal pain had
increased since Dr. Walker’s retrieval attempt. ECF No. 41-5 at pp. 21–22 of 32. The
plaintiff’s physician recorded his impression that leaving the filter in place was “not an
acceptable situation, since there is pain associated with it.” Id. at p. 22. For this reason,
the physician referred the plaintiff to a vascular surgeon to find out what could be done
to remove the filter.
On September 20, 2010, the plaintiff returned to her physician following a
consultation with a vascular surgeon. The office notes state that the surgeon advised
the plaintiff that surgery to retrieve the filter would be a high-risk procedure. The
surgeon advised the plaintiff that if her pain was under reasonably good control, then
she should not undergo the procedure. The physician’s notes state that the plaintiff
reported that she was taking Vicodin for her pain and that it provided her with enough
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pain relief to enable her to continue to work. It was also recommended that the plaintiff
obtain a second opinion about the possibility of having vascular surgery to remove the
filter.
On October 20, 2010, the plaintiff consulted with Dr. Eric Hohenwalter at
Froedtert Hospital about removal of the filter. His consultation notes state that the
plaintiff understood that the filter may be imbedded in the vein wall and not retrievable,
but that she still wanted to undergo a third retrieval attempt. On November 5, 2010, Dr.
Hohenwalter tried to remove the filter. However, like the previous two attempts, this one
was unsuccessful. The notes from the procedure state that the filter itself had fractured.
As the above chronology reveals, by November 5, 2010, the plaintiff knew that
the defendants’ filter was tilted and likely not retrievable. She had undergone three
unsuccessful procedures to remove the filter, one of which caused her excruciating
pain. She also believed that the filter was causing her to experience abdominal pain,
and the plaintiff’s physicians thought that the filter was the likely source of her pain.
However, the plaintiff did not commence this action until January 17, 2014, more than
three years after the last unsuccessful attempt to remove the filter. The defendant
contends that this was too late, and that therefore her claims are barred by the statute
of limitations.
II. DISCUSSION
A.

Motion for Summary Judgment on the Statute of Limitations
Summary judgment is required where “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). When considering a motion for summary judgment, I view the evidence in the
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light most favorable to the non-moving party and must grant the motion if no reasonable
juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255
(1986).
The parties agree that Wisconsin law applies to this case, that the applicable
statute of limitations is three years, see Wis. Stat. § 893.54, and that the plaintiff
commenced this action more than three years after the third unsuccessful attempt to
retrieve the Bard filter. The parties’ dispute centers on when the plaintiff’s claim
accrued. According to the defendants, her claim accrued no later than November 5,
2010, the date of the final retrieval attempt. But the plaintiff contends that, under the
“discovery rule,” her claim did not accrue until late 2013.
Under the discovery rule, “a cause of action will not accrue until the plaintiff
discovers, or in the exercise of reasonable diligence should have discovered, not only
the fact of injury but also that the injury was probably caused by the defendant’s
conduct or product.” Borello v. U.S. Oil Co., 130 Wis. 2d 397, 411 (1986). In the present
case, a related principle, known as the “single-injury rule,” is also relevant. Under this
rule, “the appearance of the first compensable injury starts the statute of limitations
running for all claims based on the tortfeasor’s single course of conduct, even for future
injuries that may be difficult to predict.” See Howard v. Philip Morris USA, Inc., 98 F.
App’x 535, 539 (7th Cir. 2004) (collecting Wisconsin cases). In other words, “a later
injury from the same tortious act does not restart the limitations period.” Id.
The plaintiff contends that her claim did not accrue until late 2013 because, until
then, she believed that although the Bard filter had tilted it was safe to leave it in her
body. She notes that even after three failed retrieval attempts, her doctors had assured
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her that the filter was safe to leave in place. However, in late 2013, the plaintiff met with
an attorney “and her medical records were reviewed.” Pl. Br. in Opp. at 6, ECF No. 49. 1
This attorney apparently told the plaintiff that “the tilted filter in fact could not be safety
[sic] left in place.” Id. (emphasis in original). Moreover, the plaintiff claims that she
learned for the first time after she filed this suit that one of the filter struts had fractured
and migrated to her lung. Id. at 7; Pl. PFOF ¶ 244. 2
I will assume for purposes of summary judgment that a person exercising
reasonable diligence would not have discovered that it was unsafe to leave the filter in
place or that a filter strut had fractured until late 2013. However, by late 2010, the
plaintiff was already aware that the Bard filter had injured her in other ways. In July
2010, after the first failed attempt to retrieve the filter, the plaintiff’s doctors told her that
the filter was significantly tilted. At that point, she knew that there was a problem with
the filter. She then endured two more unsuccessful retrieval attempts, one of which
caused “excruciating pain.” Pl. Dep. at 88. During this time, the plaintiff believed that the
filter was causing her to experience abdominal pain, and the office notes from the
1

The plaintiff has not filed evidence to support her factual assertions that she met with
an attorney in late 2013 and that someone (presumably the attorney) reviewed her
medical records at that time. The plaintiff’s proposed findings of fact cite to the plaintiff’s
own declaration, see Pl. PFOF ¶ 246, but no such declaration is on file with the court.
Thus, these are not facts that I may consider in opposition to the defendants’ motion for
summary judgment. See Fed. R. Civ. P. 56(c)(1)(A) (factual assertions must be
supported by citations to “materials in the record”). However, as discussed in the text,
even if the plaintiff had properly supported her factual assertions, the defendants would
still be entitled to summary judgment.
2

The materials cited in support of the plaintiff’s factual assertion that she learned for the
first time after filing this suit that a strut had fractured and migrated to her lung are not in
the record. Thus, I may not consider this fact. See Fed. R. Civ. P. 56(c)(1)(A). But
again, even if I were to consider it, the defendants would be entitled to summary
judgment.
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plaintiff’s treatment reflect that her doctors thought that the filter was a likely source of
her pain. 3 Moreover, even though the plaintiff’s doctors told her that it was safe to leave
the filter in place permanently, she was “appalled” and “devastated” by the news that
the filter could not be retrieved. See Pl. Dep. at 89, 91.
Thus, by November 2010, the plaintiff had discovered a compensable injury—the
significant tilting of the filter, which had resulted in pain, suffering, and medical
expenses and the inability to retrieve the filter. Moreover, a reasonable person in the
plaintiff’s position would have known at that time that this injury was probably caused by
the defendants’ product. The plaintiff knew that it was the defendants’ product that had
tilted, and she does not claim that she reasonably thought the tilting was caused by a
doctor’s error rather than by a potential defect in the filter itself. Accordingly, by
November 2010, the plaintiff’s claim for compensation had accrued. And under the
single-injury rule, the limitations period did not restart when the plaintiff later discovered
that a strut had fractured and that leaving the filter in place was more dangerous than
she thought. Thus, the plaintiff’s claim is barred by the statute of limitations.
In her brief, the plaintiff relies heavily on the Wisconsin Supreme Court’s decision
in Borello v. U.S. Oil Co., 130 Wis. 2d 397 (1986). In that case, the defendants
manufactured a furnace and installed it in the plaintiff’s home. Soon after it was

3

In her proposed findings of fact, the plaintiff states that no doctor has ever confirmed
that her abdominal/back/hip pain is related to the filter. See Pl. PFOF ¶ 230. However,
the material she cites in support of this factual assertion is not in the record. Thus, I may
not consider this factual assertion in deciding the motion for summary judgment. See
Fed. R. Civ. P. 56(c)(1)(A). In any event, even if the plaintiff’s pain was not caused by
the filter, she still experienced other compensable injuries in 2010, including the pain
from the retrieval attempts and the medical expenses associated with those attempts.
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installed, the plaintiff noticed a bad odor and experienced symptoms such as dizziness
and headaches. The plaintiff immediately attributed her symptoms to the furnace, but
when she reported her symptoms to her doctors, they assured her that the furnace was
not to blame. A doctor eventually attributed the plaintiff’s symptoms to the furnace, but
by that time more than three years had passed since the furnace was installed and the
plaintiff began to think that the furnace was to blame for her injuries. The defendants
thus argued that the case was barred by the statute of limitations. However, the
Wisconsin Supreme Court held that “a subjective layperson’s belief” that a product is
the cause of her injury does not start the limitations period in cases where “the cause
and effect relationship is not readily apparent.” Id. at 412. The court further held that the
plaintiff was entitled to rely on the advice of her doctors, who told her that her belief that
the furnace was the cause of her illness was incorrect. The court wrote that “[a] person
who has used reasonable diligence to secure medical advice should be given the
protection of one who is ‘blamelessly ignorant’, even though a prior hunch later proved
to be correct.” Id. at 414 (citation omitted). The court concluded that the limitations
period did not begin to run until the plaintiff had “a basis for objectively concluding” that
the defendants’ product “was probably the cause of her symptoms,” which did not occur
until a doctor diagnosed the plaintiff with an illness caused by the furnace. Id. at 414–
15.
In the present case, the plaintiff cites Borello in the course of arguing that, until
late 2013, she was “blamelessly ignorant” of the facts that the filter had fractured and
migrated and could not safely be left in place. However, as discussed above, the
plaintiff was aware that the filter had tilted and caused some compensable injury by
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November 2010. And under the single-injury rule, the plaintiff’s knowledge of some
injury triggered the limitations period even though she had not yet discovered the
injury’s full magnitude. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 317
(1995) (a plaintiff’s unawareness of “additional harm” only creates uncertainty as to the
amount of damages and does not toll the period of limitations). Thus, Borello does not
help the plaintiff here. It would be relevant only if, in November 2010, the plaintiff did not
have an objective basis for concluding that the filter had caused her an injury. But she
did. By that date, her doctors had told her the filter was tilted and not retrievable, and
she had undergone three unsuccessful retrieval procedures.
In her proposed findings of fact, the plaintiff states that “[a]t no time” did any of
her treating physicians tell her that the Bard filter was defective or causing her an injury.
See Pl. PFOF ¶ 245. However, as discussed, her doctors told her that the filter had
significantly tilted and that this was why the retrieval attempts had failed, which was
enough to start the running of the statute of limitations. The plaintiff’s doctors were not
her lawyers, and thus she could not reasonably rely on them for advice on whether the
filter was legally defective or whether she had suffered a legally compensable injury.
Moreover, the discovery rule does not defer claim accrual until a plaintiff decides to see
a lawyer to learn whether she has a legally viable claim. See American Law of Products
Liability 3d, § 47:40 (“The discovery rule does not require a plaintiff to understand all the
legal consequences of the claim”; rather, it “imposes a burden upon the claimant to
exercise, within the limitations period, reasonable diligence in ascertaining the operative
facts and whether the injury is legally compensable”). Here, the plaintiff knew the
operative facts of her claim by November 2010 and could have sought legal advice at
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that time if she wished to consider bringing a claim for compensation. But for
unidentified reasons, she waited until late 2013 to consult an attorney. The discovery
rule does not excuse this delay in seeking legal advice.
In short, the undisputed facts in the record show that, by November 5, 2010, the
plaintiff knew that the Bard filter was significantly tilted, that the tilting had caused pain,
suffering, and medical expenses, and that the tilting had made the filter irretrievable.
Thus, under the discovery rule, her claim accrued by that date. Moreover, under the
single-injury rule, the statute of limitations did not restart when the plaintiff later learned
that a filter strut had fractured and that the filter could no longer safely remain in her
body. Because the plaintiff did not commence this action until more than three years
after her claim accrued, it is barred by the statute of limitations. Accordingly, the
defendants’ motion for summary judgment will be granted.
B.

Motions to Restrict Filings
In the course of briefing the defendants’ motion for summary judgment and

motion to exclude the opinions of the plaintiff’s expert, the parties filed various materials
they claim are confidential. They also filed motions to restrict these materials from public
review. The motions to restrict the filings are unopposed, but because I have an
obligation to the public to ensure that court filings remain open to public review unless
good cause for restricting them is shown, I must still decide whether the materials may
be restricted. See, e.g., Baxter Int’l Inc., v. Abbott Labs., 297 F.3d 544, 545 (7th Cir.
2002).
Two of the motions to restrict filings relate to materials filed in connection with the
defendants’ motion to exclude the opinions of the plaintiff’s expert. See ECF Nos. 37 &
11

46. Because I granted the defendants’ motion for summary judgment based on the
statute of limitations, I did not consider the motion to exclude the expert testimony and
will deny it as moot. Thus, I did not review the allegedly confidential materials, and they
in no way affected my decision on the motion for summary judgment or on any other
matter. Therefore, they may remain restricted. See Baxter, 297 F.3d at 545 (only
documents that “underpin the judicial decision” are open to public inspection); see also
City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 698 (7th Cir.
2014) (the public has no right to access documents that “cannot conceivably aid the
understanding of judicial decisionmaking”).
Another motion, see ECF No. 53, seeks to restrict a single document, Exhibit HH,
which is an engineering test report relating to the Bard filter. The defendants contend
that this report qualifies as a trade secret. See Baxter, 297 F.3d at 546. Because I
resolved the defendants’ motion for summary judgment based on the statute of
limitations, I did not consider this report or any other trade-secret information relating to
the design, testing, or functioning of the filter itself. Thus, these materials may remain
restricted without a showing of good cause. Id. at 545; City of Greenville, 764 F.3d at
698. Such materials include several exhibits the defendants filed with their motion for
summary judgment and which are the subject of a separate motion to restrict, namely
ECF Nos. 41-15, 41-16, 41-19, 41-20, and 41-21.
The parties’ remaining two motions to restrict, ECF Nos. 40 & 48, are
problematic. First, both motions seek to restrict the plaintiff’s medical records, the
plaintiff’s entire deposition, and the entire depositions of some of the plaintiff’s doctors
on the ground that they contain the plaintiff’s medical information. However, the plaintiff
12

placed her medical history in issue when she filed this suit, and the parties cite no case
suggesting that a person who chooses to use the public courts to litigate a claim relating
to her health is entitled to shield her health information from public review. Accordingly,
no document may remain restricted simply because it relates to the plaintiff’s medical
history. The plaintiff’s medical records, her deposition transcript, and the transcripts of
the depositions of her treating physicians will be made available to the public. The Clerk
of Court will be directed to remove the restrictions on ECF Nos. 41-4, 41-5, 41-6, and
41-7.
A second problem is that the plaintiff’s motion to restrict is vastly overbroad. It
seeks to restrict everything she filed in opposition to the defendants’ motion for
summary judgment—her entire brief, her entire proposed findings of fact, and the full
contents of every exhibit she submitted. The plaintiff has not shown that the entire
contents of her summary-judgment response reveal trade secrets or other information
that may be restricted from public review, and the local rules of this court require parties
to redact confidential information from their documents rather than file entire documents
under seal. See Gen. L.R. 79(d)(2). In any event, the plaintiff has not shown good cause
for restricting any part of her response. Her motion simply asserts in conclusory fashion
that the response contains trade secrets and health information. Moreover, the
defendants did not file a response to the plaintiff’s motion in which they attempted to
show that the materials filed by the plaintiff contain their trade secrets. See Gen. L.R.
79(d)(3) (allowing party who did not file motion to restrict to file response brief
demonstrating good cause). Thus, no good cause has been shown, and I will deny the
plaintiff’s motion to restrict. However, before directing the Clerk of Court to unseal the
13

plaintiff’s response materials, I will grant the defendants a second opportunity to
demonstrate that some of the materials contain their trade secrets. They may do so by
filing a fresh motion to restrict the relevant materials and attaching redacted versions of
the materials in which only the trade secrets are redacted. The motion must be filed
within 21 days of the date of this order. If the defendants do not file such a motion, I will
assume that they agree that the materials may be unsealed.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the defendants’ motion for
summary judgment (ECF No. 39) is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to exclude certain
opinions by Robert M. McMeeking, Ph.D., (ECF No. 38) is DENIED as MOOT.
IT IS FURTHER ORDERED that the defendants’ motion to restrict certain
exhibits in support of their motion to exclude certain opinions by Robert M. McMeeking,
Ph.D., (ECF No. 37) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion to restrict Exhibit I in
opposition to the defendants’ motion to exclude certain opinions by Robert M.
McMeeking, Ph.D., (ECF No. 46) is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to restrict Exhibit HH
(ECF No. 53) is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to restrict certain
materials filed in support of their motion for summary judgment (ECF No. 40) is
GRANTED IN PART and DENIED IN PART. The motion is granted to the extent that
ECF Nos. 41-15, 41-16, 41-19, 41-20, and 41-21 may remain restricted. The motion is
14

denied to the extent that the Clerk of Court shall remove the restrictions from ECF Nos.
41-4, 41-5, 41-6, and 41-7.
FINALLY, IT IS ORDERED that the plaintiff’s motion to restrict the materials she
filed in response to the defendants’ motion for summary judgment (ECF No. 48) is
DENIED. However, the Clerk of Court shall not immediately remove the restrictions from
the associated documents. Instead, the defendants shall have 21 days from the date of
this order to show good cause for restricting parts of the plaintiff’s response materials. If
the defendants contend that any document contains confidential information, they must
attach to their motion a redacted copy of the document in which only the confidential
information is removed.
Dated at Milwaukee, Wisconsin, this 4th day of December, 2019.

s/Lynn Adelman_____
LYNN ADELMAN
United States District Judge

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