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James R. Condo (#005867)

Amanda C. Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, AZ 85004-2204 

Telephone: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Richard B. North, Jr. (admitted pro hac vice) 

Georgia Bar No. 545599 

Matthew B. Lerner (admitted pro hac vice) 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH LLP 

Atlantic Station 

201 17th Street, NW, Suite 1700 

Atlanta, GA 30363 

Telephone: (404) 322-6000 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

Attorneys for Defendants 

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation, 

No. 2:15-MD-02641-DGC

DEFENDANTS’ REPLY IN 

SUPPORT OF MOTION FOR 

SUMMARY JUDGMENT AS TO 

PLAINTIFF CAROL KRUSE’S 

CLAIMS 

CAROL KRUSE, an individual, 

Plaintiff, 

v. 

C. R. BARD, INC., a New Jersey 

corporation and BARD PERIPHERAL 

VASCULAR, INC., an Arizona 

corporation, 

Defendants.

(Assigned to the Honorable David G. 

Campbell) 

(Oral Argument Requested) 

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Plaintiff seeks to avoid summary judgment on all of her claims by (a) 

misconstruing the facts, (b) misinterpreting and misapplying the law, (c) asking this court 

to take the extraordinary step of recognizing claims that do not exist under Nebraska law, 

(d) asking this Court to ignore almost 140 years of binding Nebraska precedent on the 

issue of punitive damages, and (e) offering last-minute attempted solutions to save her 

claims, including belatedly seeking to reopen her bankruptcy estate, and submitting an 

Eleventh Hour declaration—one that contradicts her earlier, sworn deposition testimony—

long after fact discovery closed. As explained in Bard’s opening brief (Doc. 7341), and as 

explained in further detail below, Bard is entitled to judgment as a matter of law as to all 

of Plaintiff’s claims.1

A. All of Plaintiff’s Claims Are Barred by Nebraska’s Statute of Limitations.2

i. Plaintiff Knew of Her Injury on March 14, 2011. 

Bard’s Opening Brief laid out the uncontroverted facts establishing that Plaintiff 

knew, or reasonably should have known, on or before March 14, 2011, that her filter may 

be causing her abdominal pain. (See Defs.’ Br. at 6-7.) The clearest, most succinct fact in 

the record on this point comes from Plaintiff’s own deposition testimony, where, in the 

context of discussing her March 14, 2011, pre-operative clearance visit with her doctors, 

1

 As part of her response papers, Plaintiff filed a 14-page “Controverting Statement of 

Facts” (Doc. 7948), and she relies on a 52-page “Omnibus Separate Statement of Facts” 

(Doc. 7950). The District of Arizona Local Rule 56.1(b) does not require a moving party 

to reply to a “controverting statement of facts” or respond to a non-moving party’s 

“additional facts.” Accordingly, Bard is not filing such a reply or response here. As noted 

throughout this Reply Brief, however, these allegations do not raise a genuine issue of 

material fact that would preclude summary judgment. Instead, Plaintiff’s reference to 

these allegations appears to be largely an attempt to “pack” the summary judgment record 

with irrelevant allegations (e.g., allegations about filters that Plaintiff did not receive). To 

be clear, Bard disagrees with Plaintiff’s characterization of many of these alleged “facts,” 

even if such disagreement does not raise a genuine issue of material fact. 

2

 Plaintiff argues that Counts III and IV “are not subject to Defendants’ motion.” (Pl.’s 

Resp. at 1.) This is not correct. While Bard acknowledges that it inadvertently omitted 

Counts III and IV from the parenthetical in its introduction in its Opening Brief, (see 

Defs.’ Br. at 1), Bard’s Motion is abundantly clear that, with respect to Bard’s statute of 

limitations and judicial estoppel arguments, Bard is seeking summary judgment as to all 

of Plaintiff’s claims. For example, at page two of Bard’s Opening Brief, Bard stated it is 

moving for summary judgment on the grounds that “Plaintiff’s claims are barred by 

Nebraska’s 4-year statute of limitations,” and that “Plaintiff’s claims are barred by the 

doctrine of judicial estoppel.” (Defs.’ Br. at 2.) 

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she testified under oath as follows: 

 4 Q. And at this time period you had had 

 5 conversations with Kristi Eggers about potentially 

 6 my IVC filter is causing that pain; right? 

 7 A. Yes, abdominal pain. 

(Kruse Dep. Tr., at 138:4-7 (attached as Ex. E to Defs.’ SSOF (emphasis added)); see also 

id. at Kruse Dep. Tr., at 134:23 to 135:10 (attached as Ex. E to Defs.’ SSOF) (making 

clear that Plaintiff’s testimony concerns her March 14, 2011, pre-operative clearance 

visit).) The above quoted testimony demonstrates Plaintiff’s subjective knowledge as of 

March 14, 2011, that her G2 Filter may be causing her abdominal pain. This subjective 

knowledge is more than enough to trigger the statute of limitations under Nebraska law. 

The Nebraska Supreme Court has stated that “‘discovery,’ in the context of statutes of 

limitations, refers to the fact that one knows of the existence of an injury and not that he 

has a legal right to seek redress.” Lindsay Mfg. Co. v. Universal Sur. Co., 519 N.W.2d 

530, 539 (Neb. 1994) (affirming trial court’s grant of summary judgment to defendant on 

statute of limitations grounds, where evidence showed that plaintiff subjectively knew of 

alleged injury, and that knowledge triggered the relevant statute of limitations). 

Plaintiff’s Response Brief ignores Plaintiff’s sworn testimony quoted above. 

Instead, Plaintiff argues that she did not know, and should not have reasonably known, 

that her filter may have been causing her abdominal pain before April 7, 2011. (See, e.g., 

Pl.’s Resp. at 4 (“Plaintiff, however, disputes that any of these alleged facts demonstrate 

that Plaintiff knew of, or even had reason to know of, her injuries on any date before April 

7, 2011.”); Pl.’s CSOF at ¶ 7 (“[T]he reason for those discussions [with Plaintiff’s medical 

care provider before April 2011] was simply because it had been brought to Plaintiff’s 

attention that the filter was no longer needed and could be removed at a time convenient 

to her, not because Plaintiff knew or believed at that time that the filter was causing any 

pain.”).) Plaintiff’s argument should fail for two reasons. 

First, it ignores Plaintiff’s prior testimony that she had a conversation with her 

health care provider on March 14, 2011, specifically regarding her IVC filter and the fact 

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that it may be causing her pain. 

Second, Plaintiff supports this argument, not with evidence in the record prior to 

the close of discovery, but by a proffered declaration submitted long after the close of 

discovery. In her declaration, Plaintiff states that she did not know, and had no reason to 

know, that her filter had “caused any injury” until April 7, 2011. (See Pl.’s CSOF at ¶ 16.) 

This Court should ignore Plaintiff’s self-serving and contradictory statements in her 

Declaration. When, as here, “a plaintiff, without reasonable explanation, testifies to facts 

materially different concerning a vital issue, the change clearly being made to meet the 

exigencies of the pending action, the evidence is discredited as a matter of law and should 

be disregarded.” Momsen v. Nebraska Methodist Hosp., 313 N.W.2d 208, 213 (Neb. 

1981). That is precisely what Plaintiff has done here: Her proffered declaration (a) plainly 

contradicts a material fact (i.e., whether she knew by March 14, 2011, that her filter was 

potentially causing her abdominal pain); (b) concerns a vital issue (i.e., whether the statute 

of limitations is triggered); and (c) the change is clearly being made to meet the 

exigencies of the pending action (i.e., Plaintiff recognizes her claims would be timebarred without her change in testimony). Accordingly, consistent with Momsen, this Court 

should disregard Plaintiff’s declaration.3

Plaintiff also fails to support her arguments with controlling authorities from 

3

 The Momsen rule is consistent with the wealth of other authorities that have recognized 

the “sham affidavit” rule and have held that a plaintiff cannot unilaterally create a genuine 

issue of material fact simply by offering an affidavit that clearly contradicts her prior 

sworn testimony. See, e.g., Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th 

Cir. 1988) (holding that a party cannot avoid summary judgment by contradicting his own 

earlier testimony); Adams v. Greenwood, 10 F.3d 568, 572 (8th Cir. 1993) (“[A]n affidavit 

denying what is established by one’s own evidence . . . does not preclude summary 

judgment.”); Shupe v. Bank of Am. NA, No. CV-13-00019-TUC-JGZ, 2015 WL 1120010, 

at *4 (D. Ariz. Mar. 12, 2015), aff’d sub nom. Shupe v. Bank of Am., N.A., 671 F. App’x 

435 (9th Cir. 2016) (applying the sham affidavit rule and disregarding an affidavit 

submitted in response to a summary judgment motion, finding that the affidavit was 

provided “in an effort to supplement [the plaintiff’s] previous testimony and avoid 

summary judgment”). 

The Eighth Circuit persuasively explained the reasoning for this rule: “If a party who has 

been examined at length on deposition could raise an issue of fact simply by submitting an 

affidavit contradicting his own earlier testimony, this would greatly diminish the utility of 

summary judgment as a procedure for screening out sham issues of fact.” Camfield Tires, 

Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983). 

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Nebraska. Instead, Plaintiff cites Iowa law, not Nebraska law, in an attempt to support her 

position. Specifically, at page 4 of her Response Brief, Plaintiff cites Vacura v. Plott, 666 

F.2d 1200, 1204 (8th Cir. 1981), to argue that the statute of limitations should start when a 

plaintiff learns of “actionable injury.” (Pl.’s Resp. at 4 (emphasis added).) But Vacura

arose from an appeal from the Northern District of Iowa, and the court was applying Iowa 

law. See generally Vacura, 666 F.2d 1200. According to the Vacura court, in Iowa, the 

statute of limitations begins to run when a plaintiff knows or reasonably should have 

known “of one’s cause of action for negligence.” See id. at 1204. That is not the standard 

in Nebraska, where the statute begins to run when a plaintiff knows or reasonably should 

have known of her “injury or damage.” Thomas v. Countryside of Hastings, Inc., 524 

N.W.2d 311, 313 (Neb. 1994). Thus, Plaintiff’s reliance on Vacura is misplaced, and that 

case is completely irrelevant to Plaintiff’s claims arising under Nebraska law.4

ii. Plaintiff’s Status as a Bellwether Plaintiff Does Not Save Her Claims 

From the Statute of Limitations. 

Plaintiff asks this Court to take the extraordinary step and deny summary judgment 

as to her claims—notwithstanding that they are time-barred—for the mere fact that her 

case is one of the first five bellwether cases selected in this MDL. (See Pl.’s Resp. at 7-8.) 

Plaintiff cites no precedent or authority for a court to reject an otherwise meritorious 

argument that would dispose of a case merely because it is a bellwether case. Moreover, 

Plaintiff’s argument is based on a false assumption: That her case, with a meritorious 

statute of limitations defense, is not representative of a significant portion of the 323 cases 

4

 Plaintiff also attempts to downplay the significance of her seeing a TV advertisement 

soliciting potential IVC filter plaintiffs and then calling a lawyer and her daughter, 

arguing that Plaintiff did not testify that the advertisements were “soliciting potential 

plaintiffs.” (Pl.’s Resp. 6.) While Plaintiff may not have uttered those precise words, her 

argument is inconsistent with the facts. Plaintiff herself testified that the advertisement she 

saw stated, “if you’ve had an IVC filter placed and have had, you know, problems, please 

call this number.” (Kruse Dep. Tr., at 49:2-7 (attached as Ex. E to Defs.’ SSOF).) 

Additionally, in response to the Plaintiff Fact Sheet question regarding whether Plaintiff 

had “ever seen any television or print advertisement regarding possible claims against 

inferior Vena Cava Filter manufacturers,” Plaintiff responded “Yes.” (See Plaintiff’s PFS 

at § I.14 (attached as Ex. A to Defs.’ SSOF (emphasis added)).) Based on these facts in 

the record, it strains credulity to suggest that the advertisement she saw was anything but a 

solicitation seeking potential IVC filter plaintiffs. 

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in the Discovery Group Pool 1. To the contrary, Bard has conducted a preliminary statute 

of limitations assessment of the 323 cases in Pool 1 and has determined that 

approximately 84 of the cases—or 26% of the 323—have potential statute of limitations 

defenses. Accordingly, Plaintiff’s case, and Bard’s meritorious statute of limitations 

defense, is representative of a significant percentage of the Pool 1 cases. 

B. Judicial Estoppel Bars Plaintiff’s Claims.

Bard established in its Opening Brief that (a) Plaintiff has taken inconsistent 

positions between her bankruptcy case and this case, (b) the Bankruptcy Court adopted 

Plaintiff’s prior inconsistent position, and (c) Plaintiff derived an unfair advantage in her 

bankruptcy proceeding by concealing her claims. Plaintiff does not dispute the first two 

points. Instead, she incorrectly argues only that she has not derived an unfair advantage. 

Plaintiff’s argument is based on the assumption that her personal injury claim 

against Bard is fully exempt from her creditors under Neb. Rev. Stat. Ann. § 25-1563.02. 

That statute, however, applies only to liquidated claims. The case that Plaintiff cites, In re 

Rhea, 335 B.R. 428 (Bankr. D. Neb. 2004), states unequivocally that “unliquidated 

causes of action cannot be exempted under § 25–1563.02.” In re Rhea, 335 B.R. 428, 

430 (Bankr. D. Neb. 2004) (emphasis added) (citing In re Key, 255 B.R. 217 (Bankr. D. 

Nebr. 2000)). It is undisputed that Plaintiff’s current action against Bard has not been 

reduced to a dollar figure. It is, therefore, an unliquidated claim not subject to exemption 

under § 25-1563.02. Additionally, Plaintiff admits that damages that do not compensate 

her for personal injuries, such as “property damage,” are not exempt under the relevant 

statute. (Pl.’s Resp. at 10.) But in her same Response Brief, Plaintiff claims “she has 

suffered injury to her property” for which she is seeking compensation. (Pl.’s Resp. at 

23.5) Without question, then, according to Plaintiff’s own argument, her case against 

Bard, and any recovery from it, is not fully exempt under the statute. Accordingly, 

5

 Bard disputes this claim, and notes that Plaintiff’s Master Complaint never makes such 

an allegation. See Argument at Section G, infra. 

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Plaintiff did derive an unfair advantage in her bankruptcy proceeding.6 See, e.g., Jones v. 

Bob Evans Farms, Inc., 811 F.3d 1030, 1034 (8th Cir. 2016) (holding that a plaintiff 

derives an unfair advantage in her bankruptcy case by concealing a civil claim from her 

estate because the proceeds of any settlement could have been available to pay creditors). 

Finally, as noted in Bard’s Opening Brief, this Court is well within its discretion to reject 

Plaintiff’s last-minute candor by amending her bankruptcy schedules, particularly under 

the circumstances here, where Plaintiff has shown a repeated propensity to take 

contradictory positions in litigation, depending on the exigencies of the situation. See 

Jones, 811 F.3d at 1032 & 1034.7

C. Plaintiff Fails to Identify a Genuine Dispute as to Any Material Fact 

Regarding Her Failure to Warn Claim. 

i. Plaintiff’s Concessions Establish That She Cannot Prove Causation.

Plaintiff’s Response Brief concedes undisputed facts that establish, as a matter of 

law, that she cannot prove the essential element of causation to sustain her failure to warn 

claims. Plaintiff argues that if her implanting physician, Dr. Smith, received allegedly 

“adequate warnings,” “‘[i]t’s possible’ that he would have used a different device.” (Pl.’s 

Resp. at 15 (emphasis added).) Similarly, Plaintiff argues that Dr. Smith “may well 

have decided to use a different filter” and that he “may have used a different device” had 

6

 Plaintiff argues that she “did not contact her current attorneys until late 2013,” and, thus, 

she did not know she had a “valid” claim until “well after her bankruptcy had already 

been discharged.” (Pl.’s Resp. at 11.) While the caveat “current attorneys” may make her 

allegation technically correct, it is misleading. She testified she contacted Mr. Russell 

Button, a former associate of Plaintiff’s current lawyers, shortly after seeing the TV 

advertisement in 2009 or 2010, and he periodically sent her letters regarding her “case.” 

(Kruse Dep. Tr., at 45:24 to 46:15, 46:24 to 47:22 (attached as Ex. E to Defs.’ SSOF).) 

She also stated under oath in her PFS response that she first retained an attorney on or 

about the 184th day of 2013 (i.e., July 3, 2013), which can hardly be construed as “late 

2013.” (Plaintiff’s PFS at § I.1.(e) (attached as Ex. A to Defs.’ SSOF).) As shown by these 

facts and the facts identified by Bard in support of its statute of limitations defense, 

Plaintiff knew of her potential claim against Bard when she received her bankruptcy 

discharge on June 3, 2013, not “well after her bankruptcy had already been discharged.” 

7

 In its Opening Brief, Bard argued that any damages that could be recovered against Bard 

should be capped at an amount sufficient to satisfy Plaintiff’s creditors and the costs and 

fees incurred by the trustee. (Defs.’ Br. at 9-10.) Plaintiff did not respond to this argument, 

and, thus, it should be deemed conceded by Plaintiff. 

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Bard’s warnings been different. (Pl.’s Resp. at 15-16 (emphasis added).) Mere 

possibilities—and speculation as to what Dr. Smith “may have done” in a hypothetical 

situation—are insufficient to establish causation as a matter of established Nebraska law. 

See Roskop Dairy, L.L.C. v. GEA Farm Techs., Inc., 871 N.W.2d 776, 799 (Neb. 2015) 

(“[S]peculation and conjecture are not sufficient to establish causation.”). 

The Nebraska Supreme Court has clearly enunciated the standard to prove 

causation: A plaintiff must present evidence that a certain event (i.e., an inadequate 

warning, a dangerous condition, or an allegedly defective drug) was the “probable” cause 

of her injuries. See, e.g., Swoboda v. Mercer Mgmt. Co., 557 N.W.2d 629, 632 (Neb. 

1997) (“Swoboda was not required to eliminate all alternate theories regarding how the 

accident may have happened, but she was required to establish with a reasonable 

probability that the accident happened in the manner alleged in her petition.” (emphasis 

added)); see also Parker v. United States, No. 8:16CV00199, 2017 WL 2963870, at *3 

(D. Neb. June 7, 2017) (“The evidence must be sufficient to make the theory of causation 

reasonable and not merely possible.”). 

In Doe v. Zedek, 587 N.W.2d 885 (Neb. 1999), the Nebraska Supreme Court stated 

that “the term ‘possible’ does not encompass . . . ‘more likely than not.’ ‘Possible’ is 

mere speculation, which is not sufficient.” Id. at 893–94 (emphasis added).8 In other 

words, the Nebraska Supreme Court has held that evidence of a mere “possibility” is not 

sufficient to establish a plaintiff’s burden to prove all elements by a preponderance of the 

evidence, i.e., “more likely than not.” Accordingly, Plaintiff’s attempt to save her failureto-warn claims by relying on “possibilities” and speculation as to what Dr. Smith “may 

well have” done are insufficient as a matter of law to prove causation. Because Plaintiff 

8

 The Court’s complete statement is as follows: “First, the term ‘possible’ does not 

encompass either ‘reasonable medical certainty’ or ‘reasonable probability,’ i.e., more 

likely than not. ‘Possible’ is mere speculation, which is not sufficient.” Zedek, 587 

N.W.2d at 893-94. Although the Court’s statement is in the context of the standard for 

medical expert testimony to prove causation, that does not alter the analysis or the 

opinion’s impact on this case. The Court in Zedek clearly refuses to equate “possibility” 

with “more probable than not,” which is the standard of Plaintiff’s burden of proof. 

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cannot raise a genuine issue of material fact as to the essential element of causation—that 

is, that a different warning would have probably changed Dr. Smith’s decision to use a G2 

Filter—her failure to warn claims fail as a matter of law.9

ii. Bard’s Duty to Warn Extends Only to Plaintiff’s Implanting 

Physician.

Plaintiff concedes that the learned intermediary doctrine applies in this case. (Pl.’s 

Resp. at 13 (“Nebraska applies the learned intermediary doctrine to failure-to-warn 

claims.”).) Plaintiff also does not dispute that the Bard G2 Filter is a prescription medical 

device. And, like Bard, Plaintiff relies on the leading Nebraska Supreme Court opinion, 

Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000), to provide the law 

regarding the learned intermediary doctrine in Nebraska. (See Pl.’s Resp. at 13.) Freeman

is unequivocal regarding to whom a prescription pharmaceutical drug or medical device 

manufacturer owes a duty: The Court stated that a manufacturer’s “duty to warn extends 

only to members of the medical profession and not to the consumer.” Freeman, 618 

N.W.2d at 841 (emphasis added). 

Even after agreeing that the learned intermediary doctrine applies in this case, and 

9

 At page 15 of her Response Brief, Plaintiff argues, “[Dr. Smith] testified that if he had 

been presented with data showing that another filter was safer, ‘[y]ou would have to 

decide which filter . . . you would want to use . . . based on’ that data.” (Pl.’s Resp. at 15.) 

That Dr. Smith testified that he would “have to decide which filter” to use is not evidence 

that he probably would have used a difference device. Regardless, in her Response Brief, 

Plaintiff uses ellipses to omit a critical fact from Dr. Smith’s testimony: His testimony 

was offered in the context of deciding whether to use the Recovery Filter, not the G2 

Filter, which is the device that Plaintiff actually received. The complete question and 

answer, which Plaintiff did not provide in her Response Brief, illuminates the full context 

of Dr. Smith’s testimony: 

 8 Q. (BY MR. ARBON) And if you had been told that the 

 9 G -- or a Recovery filter in this case, had -- was 

10 associated with reported deaths at a rate of 4.6 

11 higher than the other filters, would you think you 

12 would want to use that filter or another filter? 

13 MS. HELM: Object to the form. 

14 A. You would have to decide which filter, yes, you 

15 would want to use, Recovery or G2 if this is based on 

16 Recovery data. 

(Smith Dep. Tr., at 51:8-16 (attached as Ex. 7 to Pl.’s CSOF).) 

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after citing Freeman, Plaintiff inexplicably alleges that she, herself, was “owed a duty to 

be adequately warned of potential complications of her filter by Defendants.” (Pl.’s Resp. 

at 14.) To support her argument, Plaintiff relies on Bard’s G2 Filter IFU, which states, 

“Federal (U.S.A.) law restricts this device to sale by or on the order of a physician.” (Ex. 

B to Defs.’ SSOF.) She then points to billing records that purportedly show she was billed 

$2,372.00 for her filter as proof that she “purchased” her filter. (Pl.’s Resp. at 14.) 

Plaintiff’s argument fails for three reasons. First, Plaintiff’s billing record is not 

evidence that she actually purchased her filter. While she may have been billed by her 

hospital, it is certainly conceivable that her insurer, identified as Blue Cross on the 

document provided by Plaintiff, paid the bill. At most, the factual record is entirely devoid 

of evidence that Plaintiff, herself, purchased her filter. 

Second, even if Plaintiff purchased her G2 Filter, that does not create a legal duty 

for Bard to directly warn her about potential IVC filter complications. Plaintiff has 

identified no authority stating that a patient is owed a duty to be warned by a product 

manufacturer in a state that recognizes the learned intermediary doctrine merely because 

the patient purchased her prescription device or medication. 

Third, the statement in the IFU that the device may be sold “by” or “on the order” 

of a physician does not alter the relationship between Bard, the device manufacturer, and 

the consumer, Ms. Kruse. Bard does not sell its prescription medical devices directly to 

consumers, and Plaintiff’s argument does not dispute that fact. Instead, prescription 

medical devices are sold by manufacturers, like Bard, to learned intermediaries, i.e., 

physicians, who decide whether to use the devices with their patients. That is the genesis 

of the learned intermediary doctrine in the first place. The learned intermediary is in the 

best position to advise his patient as to the use of a prescription medical device, and, 

therefore, a medical device manufacturer’s duty is to warn the physician, not the patient. 

Thus, the fact that a physician may “charge” his patient for the cost of a Bard G2 Filter 

does not somehow create a duty on Bard to warn the consumer directly.10

10 Plaintiff also relies on testimony from a Bard corporate witness, Dr. Christopher 

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At bottom, Plaintiff’s argument that Bard had a duty to warn her directly regarding 

potential risks associated with the G2 Filter, a prescription medical device, is contrary to 

the Nebraska Supreme Court’s holding in Freeman. Plaintiff’s argument should, 

therefore, be rejected. 

iii. Bard’s Warnings Are Legally Adequate.

Plaintiff concedes that Dr. Smith was independently aware of the risks of IVC filter 

fracture, migration, perforation, and tilt, all of which are complications that Plaintiff 

allegedly experienced. (Pl.’s Resp. at 15.) Plaintiff argues that Bard’s G2 warnings are 

somehow inadequate because Bard did not warn about the severity of those risks, and 

because Bard did not provide comparative rate information in its IFU.11 (See Pl.’s Resp. at 

14.) Regarding Plaintiff’s “severity” argument, Plaintiff fails to cite any legal authority to 

support her argument. And, regardless, Bard’s G2 Filter IFU explicitly warned that the 

complications associated with use of the device “have been associated with serious 

adverse events such as medical intervention and/or death.” (Ex. B to Defs.’ SSOF 

(emphasis in original).) Plaintiff has failed to articulate what additional warnings about 

the severity of potential IVC filter complications should have been included in the IFU, 

and she has failed to offer evidence demonstrating that any additional severity warnings 

Ganser, and a Bard expert, Dr. Clement Grassi, to support her argument that Bard owed 

her a duty to warn. (Pl.’s Resp. at 14.) Bard does not agree with Plaintiff’s 

characterization of that testimony. But regardless, the testimony of a fact or expert witness 

has no bearing on the legal question regarding to whom a prescription medical device 

manufacturer owes a duty to warn. That question has been conclusively decided by the 

Nebraska Supreme Court in Freeman. 

11 Bard preemptively addressed Plaintiff’s “comparative rate” argument in footnote 5 of 

Bard’s Opening Brief, and the issue has been and is being addressed in other briefing, 

including in the summary judgment papers filed in the Jones v. C. R. Bard, et al. matter. 

Bard fully incorporates herein by reference its arguments in the Jones summary judgment 

briefing concerning the lack of a duty to provide comparative warnings. In her Response 

Brief, Plaintiff accuses Bard of “bypass[ing] the page limits” and “violat[ing] the spirit” of 

the Court’s orders by referencing these arguments. (Pl.’s Resp. at 15 n.5.) This Court 

should reject Plaintiff’s argument for two reasons. First, Plaintiffs in this MDL have 

repeatedly resorted to the use of “omnibus” briefs that they later incorporate by reference 

in other papers. (See, e.g., Pls.’ Resp. to Defs.’ Dr. Kessler Daubert Mot. (Doc. 7805) 

(incorporating by reference Plaintiffs omnibus statement of law into their Response 

Brief).) Second, this Court’s Case Management Order No. 26 (Doc. 6799) specifically 

instructed the parties that “[i]f issues are to be addressed that apply to some or all of the 

bellwether cases, they should be briefed only once.” That is precisely what Bard has done. 

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would have altered her physician’s decision to use the device. 

D. Plaintiff’s Semantics Do Not Save Her Failure to Recall/Retrofit Claims. 

Plaintiff argues that the Court should deny summary judgment as to Count VI, 

failure to recall/retrofit, because Bard “mischaracterizes” the claim as a post-sale duty to 

warn claim. (Pl.’s Resp. at 16.) This Court should reject Plaintiff’s argument. Regardless 

of semantics, the concepts “post-sale duty to warn,” “failure to recall,” or “failure to 

retrofit,” all have at least one thing in common: They contemplate a cause of action that is 

based on a manufacturer’s duty to take some form of action after the product is placed in 

the stream of commerce.12 That is precisely what the Eighth Circuit in Anderson held to 

be contrary to Nebraska Supreme Court precedent. Anderson v. Nissan Motor Co., 139 

F.3d 599, 602 (8th Cir. 1998). The Anderson court stated “that Nebraska favors limiting 

the state’s products liability law to actions or omissions which occur at the time of 

manufacture or sale. Based on this conclusion, we hold that the district court correctly 

dismissed Anderson’s claims for post-sale duty to warn and duty to retrofit pursuant to 

Rule 12(b)(6).” Id. (emphasis added). 

In support of her argument, Plaintiff quotes Burke v. Deere & Co., 6 F.3d 497, 510 

(8th Cir. 1993), which states that “a duty to recall is not generally incorporated in a duty 

to warn.” (Pl.’s Resp. at 16.) Plaintiff’s reliance on Burke is puzzling. First, the Eighth 

Circuit in Burke was applying Iowa law, not Nebraska law. See generally Burke, 6 F.3d 

497. Second, to the extent Burke has any applicability to this case, it actually supports 

Bard’s position. The court in Burke succinctly stated, “We repeat, we find no independent 

duty to retrofit or recall under Iowa law.” Id. at 510. 

Finally, in advocating against summary judgment, Plaintiff asks this Court to be the 

first court in the country to recognize a post-sale duty to recall or retrofit in Nebraska. In 

12 Plaintiff herself confuses this same terminology when she states that Anderson

“concluded that Nebraska courts would not recognize a duty to recall and/or retrofit.” 

(Pl.’s Resp. at 16-17.) The Anderson court held that Nebraska does not recognize claims 

for “post-sale duty to warn and duty to retrofit.” Anderson v. Nissan Motor Co., 139 F.3d 

599, 601 (8th Cir. 1998). 

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doing so, Plaintiff invites this MDL Court sitting in Arizona to take the extraordinary step 

of creating new causes of action for a state, Nebraska, located approximately 1,000 miles 

away. This Court should decline Plaintiff’s invitation. As the Nebraska Supreme Court 

stated, questions “of public policy,” such as whether the State of Nebraska should 

recognize causes of action that are premised on duties that arise after a manufacturer sells 

a product, are “better left to the Legislature.” Pelzek v. Am. Legion, 463 N.W.2d 321, 324 

(Neb. 1990) (refusing to recognize a common law cause of action for negligence based on 

an alleged violation of a dramshop statute, where neither the state legislature nor the 

common law of Nebraska had previously recognized such a claim). 

E. Plaintiff Asks This Court to Recognize an Exception for Negligence Per Se 

That Does Not Exist. 

Plaintiff argues that “negligence per se must be recognized in Nebraska in 

extraordinary cases.” (Pl.’s Resp. at 19.) But Plaintiff fails to identify any case that has 

applied this purported exception to the “ordinary rule,” as recognized by Plaintiff, “that 

violation of a statute or regulation does not constitute negligence per se.”13 (Id.) Instead, 

Plaintiff relies on outdated cases and, again, on semantics to read into Nebraska law an 

exception that does not exist. (See id. (“[I]f these modifiers ‘ordinarily’ or ‘generally’ are 

to have any meaning, then negligence per se must be recognized in Nebraska in 

extraordinary cases.”).) The Nebraska Supreme Court cases that Plaintiff cites 14 all 

predate the 2016 Nebraska Supreme Court opinion upon which Bard relies, Scheele v. 

Rains, 874 N.W.2d 867 (Neb. 2016). Last year in Scheele, the Nebraska Supreme Court 

stated, without caveat, and without any modifiers, that “violation of a regulation or statute 

is not negligence per se, but may be evidence of negligence to be considered with all the 

13 Moreover, Plaintiff fails to identify any case that has applied this alleged exception in 

an action alleging violation of the Federal Food, Drug and Cosmetic Act or the regulations 

promulgated in accordance with that Act (which are the federal statutes and regulations 

upon which Plaintiff’s negligence per se claim is based), or alleging violation of 

Nebraska’s consumer protection statutes. 

14 Goodenow v. State Dep’t of Corr. Servs., 610 N.W.2d 19 (Neb. 2000), Maresh v. State, 

489 N.W.2d 298 (Neb. 1992), and Walton v. Patil, 783 N.W.2d 438 (Neb. 2010). 

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other evidence in the case.” Id. at 872. The Nebraska Supreme Court could not have been 

clearer and left no room for exceptions. Accordingly, this Court should refuse to 

recognize an exception to Nebraska’s negligence per se rule that does not exist. 

F. Plaintiff Cannot Establish Reliance, Which Forecloses her 

Misrepresentation/Concealment Claims. 

Notwithstanding having the entire record at her disposal, Plaintiff still does not cite 

to any record evidence demonstrating that she, or her physician, relied on any 

misrepresentation by Bard. 

Regarding Dr. Smith,15 instead of pointing to record evidence, Plaintiff relies on 

her pleadings. (See Pl.’s Resp. at 20-21 (referencing six paragraphs from the Master 

Complaint).) But Plaintiff is not responding to a motion to dismiss under Rule 12(b)(6), 

where the sufficiency of Plaintiff’s pleadings is tested. In response to Bard’s summary 

judgment motion, Plaintiff is obligated under Rule 56(c) to support her position by “citing 

to particular parts of materials in the record.” The only record evidence that Plaintiff cites 

is Dr. Smith’s testimony where he states he relies on “multiple sources” in making 

treatment decisions. (Pl.’s Resp. at 21.) Plaintiff then emphasizes the words “but not 

limited to” when listing the specific sources of information upon which Dr. Smith testified 

he relies (training, experience, colleagues’ experience, and medical literature), suggesting 

that Dr. Smith testified as to other sources of information. Plaintiff, however, does not 

cite, nor can she cite (because Dr. Smith never testified to it), testimony that Dr. Smith 

said he relies on a manufacturer’s communications or internal documents (which Plaintiff 

alleges forms the basis of a misrepresentation) when making treatment decisions. 

Regarding her own lack of reliance, Plaintiff still cannot point to any statement by 

Bard that she relied upon in consenting to receive her filter. Although she claims that “she 

15 Bard’s argument in its Motion raises the issue of whose “reliance” is relevant for 

purposes of deciding the misrepresentation and concealment claims. (Defs.’ Mot. at 15.) 

Plaintiff’s Response Brief cites no authority for the proposition that someone else’s 

alleged reliance (i.e., Dr. Smith’s) can be substituted for Plaintiff’s lack of reliance to 

support a misrepresentation or concealment claim. 

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did receive at least general information about her filter before implantation,” (Pl.’s Resp. 

at 21 (citing Pl.’s CSOF ¶ 41) (emphasis added)), that claim is belied by the deposition 

testimony that Plaintiff cites. In her Controverting Statement of Facts, Plaintiff cites her 

sworn deposition testimony at pages 124:18 to 125:12. That testimony is as follows: 

18 Q. Do you remember having a conversation with 

19 Dr. Smith where he went through the potential risks 

20 associated with the IVC clot filter placement that 

21 are described in this form? 

22 MR. ARBON: Objection to form. 

23 THE WITNESS: The procedures that he 

24 explained were general type procedures. There was

25 nothing specific as to, you know, this is what will

 1 happen with a clot filter. 

 2 BY MR. NASH: 

 3 Q. Understood. But you do remember, then, a 

 4 conversation with Dr. Smith about the general risks? 

 5 A. Yes. 

 6 Q. And you acknowledged those potential 

 7 risks? 

 8 A. The general risks, yes. 

 9 Q. And signed your informed consent to go 

10 ahead with the procedure? 

11 A. Yes. I did read and I understood the 

12 information. 

(Kruse Dep. Tr., at 124:18 to 125:12 (attached as Ex. 3 to Pl.’s CSOF) (emphasis added).) 

The above testimony from Plaintiff is clear that she did not receive any information 

“about her filter” as she claims in her Response Brief. (Pl.’s Resp. at 21.) The reality is 

that Plaintiff testified she relied on her doctors in deciding whether to receive an IVC 

filter. Her testimony on this point is as follows: 

13 Q. Did you rely on your doctor, Dr. Smith, 

14 to -- and Dr. Chingren to use their medical judgment 

15 to decide whether it’s important for you to receive 

16 an IVC filter? 

17 A. Yes. 

(Kruse Dep. Tr., at 125:13-17 (attached as Ex. 3 to Pl.’s CSOF).) Plaintiff never 

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testified that she received any information from Bard, much less relied on the same, in 

choosing to receive her G2 Filter. Indeed, she did not even know Bard was the 

manufacturer of her device until the day of her unsuccessful removal procedure in 2011, 

(see Kruse Dep. Tr., at 87:8-24 (attached as Ex. E to Defs.’ SSOF)), so she could not have 

possibly relied on any act or omission by Bard. Where, as here, a plaintiff cannot show 

that she “received the information” that is allegedly false, she cannot prove the essential 

element of reliance as a matter of law. Knights of Columbus Council 3152 v. KFS BD, 

Inc., 791 N.W.2d 317, 328 (Neb. 2010). Accordingly, Plaintiff’s misrepresentation and 

concealment claims fail as a matter of law. 

G. Plaintiff’s Consumer Fraud Claims Fail.

Plaintiff’s Response Brief fails to raise any genuine issue of material fact regarding 

her consumer fraud claims. 

Regarding her Consumer Protection Act (“CPA”) claim, Plaintiff claims she has 

“suffered injury to her property” because her IVC filter has been allegedly damaged. 

Plaintiff’s argument fails for two reasons. First, Plaintiff’s Master Complaint does not 

claim any “property damage” or seek compensation for alleged injury to property, such as 

Plaintiff’s filter. Plaintiff cannot now, for the first time, claim “property damage” in a 

response to a motion for summary judgment, where such claim is absent from the 

pleadings. Second, although Plaintiff claims she “purchased her filter,” she has proffered 

no evidence of a purchase. As noted above, the billing record that she submitted may be 

proof that the hospital attempted to charge her for the filter, but it does not evidence 

consummation of a transaction whereby Plaintiff “purchased” her device. 

Plaintiff also claims she has identified “a multitude” of alleged violations of the 

CPA, and she cites to various paragraphs of her omnibus statement of facts. (Pl.’s Resp. at 

23 n.10.) But while Plaintiff makes this bald assertion, she fails to identify how any of the 

alleged statements in those paragraphs constitutes “unfair competition,” “conspiracies in 

restraint of trade,” “monopolies,” “transactions and agreements not to use or deal in 

commodities or services of competitor,” or “acquisition of corporate stock by another 

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corporation to lessen competition,” which are the acts prohibited by the CPA for which a 

plaintiff may seek civil remedies under § 59-1609. See, e.g., Neb. Rev. Stat. §§ 59-1602 to 

1606, & 1609. Because Plaintiff fails to identify any conduct of Bard that constitutes a 

prohibit act under §§ 59-1602 to 1606, her CPA claim fails as a matter of law. 

Regarding her Uniform and Deceptive Trade Practices Act (“UDTPA”) claim, 

Plaintiff argues that the very last line of the Master Complaint, in which Plaintiff 

generically requests “[s]uch other additional and further relief as Plaintiffs may be entitled 

to in law or in equity” (see Master Complaint (Doc. 364)), somehow transforms her action 

for money damages for alleged personal injuries into an action for an injunction that 

would be cognizable under Nebraska’s UDTPA, § 87-303(a). This vague prayer for relief, 

likely found in the vast majority of litigants’ civil complaints, can hardly be interpreted as 

Plaintiff seeking an injunction ̧ which is the relief afforded to plaintiffs under § 87-

303(a). Moreover, Plaintiff fails to identify in her Response Brief what injunctive relief 

she is seeking in this case,16 and she fails to identify what future harm she would suffer if 

Bard is not enjoined. See Estate of Joyce Rosamond Petersen v. Boland, No. 8:16CV183, 

2016 WL 6102339, at *6 (D. Neb. Oct. 19, 2016) (dismissing the plaintiff’s UDTPA 

claim, even though the plaintiff “pray[ed] for injunctive relief,” because the complaint 

only sought “damages for a past violation” and failed to identify any “future harm” at 

issue, that is, harm for which an injunction was necessary to prevent). Accordingly, 

Plaintiff’s UDTPA claim, like her CPA claim, fails as a matter of law. 

H. Plaintiff’s Claim for Punitive Damages Fails as a Matter of Law.

In previous representations to this Court, Plaintiff and her counsel argued that 

“Nebraska does not allow punitive damages.” (Pls.’ April 24, 2017, Submission of Cases 

for Bellwether Group 1 (Doc. 5723), at 21.) As she has done in other aspects of her 

Response Brief, Plaintiff now takes the opposite, contradictory position to meet the 

exigencies of litigation. She now argues that she is entitled to recover punitive damages 

16 Plaintiff could not seek an injunction to enjoin Bard from selling the G2 Filter, for 

example, because Bard stopped selling that device in the United States in 2011. 

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“so long as they are paid over to counties and appropriated for school funding.” (Pl.’s 

Resp. at 24.) Plaintiff’s argument should be rejected for three reasons. 

First, Plaintiff’s Master Complaint never requests that an award of punitive 

damages be paid to Nebraska schools. Plaintiff cannot now, for the first time in response 

to a summary judgment motion, ask for this new form of relief. 

Second, Plaintiff’s argument, and her reliance on the Nebraska Constitution for the 

“Nebraska school” exception, is misplaced because it confuses the issue of to whom fines 

and penalties shall be paid, with whether fines and penalties may be imposed in the first 

instance. (See, e.g., Pl.’s Resp. at 24 (arguing that Bard is “overlooking the one instance 

in which such damages may be awarded”).) As the Nebraska Supreme Court has stated, 

Neb. Const. art. VII, § 5 “relates to whom penalties shall be paid . . . . It does not relate to 

imposition of penalty.” In re Rogers’ Estate, 22 N.W.2d 297, 303 (Neb. 1946) (emphasis 

added). This latter issue—whether punitive damages may be awarded at all in a civil 

action in Nebraska—has been settled since 1878. See generally Boyer v. Barr, 8 Neb. 68, 

74 (1878). As the Nebraska Supreme Court stated more than 50 years ago, 

It has been a fundamental rule of law in this state that punitive, vindictive, 

or exemplary damages will not be allowed, and that the measure of recovery 

in all civil cases is compensation for the injury sustained. This rule is so well 

settled that we dispose of it merely by the citation of cases so holding. 

Abel v. Conover, 104 N.W.2d 684, 688 (Neb. 1960) (emphasis added) (citing Boyer, 8 

Neb. 68; Atkins v. Gladwish, 41 N.W. 347 (Neb. 1889); Bee Pub. Co. v. World Pub. Co., 

82 N.W. 28 (Neb. 1900); Wilfong v. Omaha & Council Bluffs St. Ry. Co., 262 N.W. 537 

(Neb. 1935)). Contrary to Plaintiff’s allegation, Bard is not “selectively apply[ing] the 

state constitutional provision.” (Pl.’s Resp. at 24.) Bard is merely asking this Court to 

apply Nebraska law that has been settled for almost 140 years. 

Third, substantially the same argument advanced by Plaintiff in her Response Brief 

has been rejected by the District of Nebraska. In Factory Mut. Ins. Co. v. Neb. Beef, Inc., 

No. 8:09CV159, 2009 WL 2886315 (D. Neb. Sept. 2, 2009), a party in a civil action 

sought punitive damages, arguing that “the language of the Nebraska Constitution leaves 

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the door open for punitive damages, albeit punitive damages appropriated to the schools 

rather than to a particular party.” Id. at *3. The court rejected the argument, noting that the 

party “failed to provide any legal support for [it’s] position.” Id. The Court also noted that 

the party failed to show that it had “standing to pursue punitive damages on behalf of 

another,” i.e., the common schools of Nebraska. Id. Given the “overwhelming support 

indicating the [party’s] prayer for punitive damages is insufficient as a matter of law,” the 

court struck the party’s claim for punitive damages. Id.

Here, in light of Nebraska’s “[c]lear constitutional prohibition” against punitive 

damages, Enron Corp. v. Lawyers Title Ins. Corp., 940 F.2d 307, 313 (8th Cir. 1991), this 

Court should grant summary judgment on Plaintiff’s punitive damages claim. See e.g., 

Bamford, Inc. v. Regent Ins. Co., No. 8:13CV200, 2014 WL 12539650, at *2 (D. Neb. 

June 12, 2014) (granting defendant’s motion for summary judgment on plaintiff’s claim 

for punitive damages, finding that “Nebraska’s Supreme Court has read the state 

Constitution to prohibit punitive damages”); Kabasinskas v. Haskin, No. 8:10CV111, 

2011 WL 1897546, at *6 (D. Neb. May 18, 2011) (granting Defendant’s motion for partial 

summary judgment on the issue of punitive damages); Sherman v. Sunsong Am., Inc., 485 

F. Supp. 2d 1070, 1088 (D. Neb. 2007) (“Punitive damages are not allowed under 

Nebraska law, and consequently I will grant summary judgment in favor of all Defendants 

as to the ninth cause of action.”); Stoltenberg v. Unum Life Ins. Co. of Am., No. 

8:04CV288, 2005 WL 2044895, at *5 (D. Neb. Aug. 25, 2005) (“[T]he court finds 

plaintiff cannot maintain an action for punitive damages and defendant’s motion to 

dismiss plaintiff’s prayer for punitive damages should be granted.”). 

CONCLUSION 

For these reasons, and for the reasons stated in Bard’s Opening Brief, Bard 

respectfully requests that this Court grant Bard’s Motion for Summary Judgment. 

RESPECTFULLY SUBMITTED this 25th day of October, 2017. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Georgia Bar No. 545599 

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201 17

t h

Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Matthew B. Lerner 

Georgia Bar No. 446986 

NELSON MULLINS RILEY & SCARBOROUGH, LLP 

Atlantic Station 

201 17th Street, NW / Suite 1700 

Atlanta, GA 30363 

PH: (404) 322-6000 

FX: (404) 322-6050 

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com 

James R. Condo (#005867) 

Amanda Sheridan (#027360) 

SNELL & WILMER L.L.P. 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2204 

PH: (602) 382-6000 

jcondo@swlaw.com 

asheridan@swlaw.com 

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc. 

Case 2:15-md-02641-DGC Document 8390 Filed 10/25/17 Page 20 of 21
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201 17

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Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CERTIFICATE OF SERVICE 

I hereby certify that on this 25th day of October 2017, the foregoing was 

electronically filed with the Clerk of Court using the CM/ECF system which will 

automatically send email notification of such filing to all attorneys of record. 

s/Richard B. North, Jr. 

Richard B. North, Jr. 

Case 2:15-md-02641-DGC Document 8390 Filed 10/25/17 Page 21 of 21