Plaintiffs sued C.R. Bard under Mississippi law for complications experienced after the implantation of a filter used as a medical device. The District Court granted summary judgment on their failure-to-warn and design defect claims. The U.S. Fifth Circuit affirmed:
In Mississippi, a warning may be held adequate as a matter of law where the adverse effect was one that the manufacturer specifically warned against. “Here, the district court held that the Information for Use (IFU) expressly warned the treating physician of the very complications that Dennis Nelson ultimately suffered; thus, the warnings were adequate as a matter of law. Indeed, the IFU in its bolded Warnings explicitly warns of fracture and migration as ‘known complications’, the very complications that allegedly caused Nelson’s injuries….
“The Nelsons do not persuasively argue that there were any specific complications of the Filter that the IFU failed to warn of. Instead, the Nelsons primarily argue that the warning was inadequate because Bard failed to disclose comparative rates of risk associated with other, similar filters. The district court noted the problematic policy concerns that would follow potential liability for failure to include comparative device risk information in warnings. We do not address policy considerations, however perceptive; nor do we conclusively decide as a matter of Mississippi law whether a warning, using other language and in other circumstances, might be inadequate for failing to include undisclosed same-device ‘dangers’ (plural, as in the statute). Instead, we hold only that the district court correctly entered summary judgment here, on the Nelsons’ inadequate warning claim because the Nelsons fail to discuss, in any meaningful way, the warning language itself. Rather than explaining why the text of the warning was inadequate, the Nelsons argue to us that Bard concealed and omitted risk data and thereby provided ‘insufficient warning of incidence and seriousness’ and, specifically, that Bard failed to warn physicians of high complication rates that it was aware of at the time. They argue that the information that was concealed was so ‘egregious’ that the ‘IFU is per se inadequate.’ In making this concealed-information argument, they rely on internal documents. Yet in Fortenberry, the Mississippi Supreme Court explained that failure to warn cases must be based upon the warning label itself — its text and language….”
With respect to the design defect claim, “Bard argues that the Nelsons’ design defect claim must fail because they had no expert testimony on specific causation, i.e., an expert who could have testified that a design defect caused the injuries suffered by Dennis Nelson. Although no requirement exists that an expert must always connect the dots of specific causation, we agree with the district court that the Nelsons failed to draw its attention, at the summary judgment stage, to evidence that the Filter’s allegedly defective design proximately caused the device to fracture and migrate after it had been implanted in Dennis Nelson.” The District Court held that: “There is no testimony or evidence cited by the Plaintiff that ties the specific design defect identified by Dr. McMeeking to the damages for which Plaintiffs seek recovery. His testimony addresses how the design can cause the filter to tilt, but here the issue is fracturing and migration. There is no evidence submitted to the Court that ties a design defect to these particular issues.” The Fifth Circuit noted that, while the Nelsons make broad statements throughout their brief that presume a design defect must have caused Dennis Nelson’s complications … but actual evidence had to be identified to the district court in order to advance beyond the summary judgment stage for a design defect claim. Although not quoted to the district court in the summary judgment proceedings, we discern in one excerpt of Dr. McMeeking’s testimony his opinion pointing in the direction of causation — where he used a ruler to testify to the ‘geometric effect’ that tilt brought about, asserting that ‘the limb will fracture by fatigue that much sooner because of this geometric effect that is associated with perforation of the limb through the wall of the IVC.’ However, the Nelsons failed to direct the district court’s attention to this quote, and so we do not consider it here. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment”); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim”).”
Nelson v. C.R. Bard, 44 F.4th 277 (5th Cir. 2022).
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