The past month has brought a flurry of activity in the litigation surrounding IVC filters, and particularly those filters made by medical device manufacturer C.R. Bard.
Thousands of lawsuits claim the devices, which are designed to catch clots in the bloodstream before they can make their way to the patient’s heart or lungs, are faulty in both their design and their function. The suits claim a litany of injuries including migration of the device to other parts of the body, fracture of the device, and the perforation of the filter into various organs and blood vessels. These faults and malfunctions are blamed for a range of issues including stroke and death.
Two previous bellwether trials resulted in one decision for the plaintiff and one decision in favor of the corporation. This set the stage for the third such trial, which started in mid-September, to warrant particular attention. Given the sheer magnitude of the number of IVC filter lawsuits that have been filed, any one decision in this matter would have the potential to affect thousands of lives. A decision that would effectively break a tie, however, could have longer-lasting implications for future cases.
Earlier this month, the judge in the trial ruled that regardless of the verdict, the plaintiff would not be able to collect damages in preparation for the mere risk of developing future health problems. At issue were the plaintiff’s claims over the possibility that her IVC filter may cause her to eventually develop heart arrhythmia. She included the cost of an implantable defibrillator in her suit, although such a device is not currently necessary for the treatment of her injuries. An expert witness testified on her behalf that arrhythmia was possible given the injuries sustained, but not probable. “May” appeared to have been the operative word as the judge ruled that such a claim could not be made under Wisconsin law, noting that “future injuries and medical care must be established by a medical probability, not a mere possibility.”
The jury found in Bard’s favor late last week, giving the corporation a 2-1 record in defending its product. Still, with thousands of cases still pending and additional federal court trials set for early next year, it’s difficult to predict what the overall outcome will be for those whose lives were so negatively impacted by a device that was supposed to help them.