United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 10, 2022 No. 21-60689 Lyle W. Cayce Clerk

Dennis Nelson; Kathy Nelson,

Plaintiffs—Appellants,

versus

C. R. Bard, Incorporated; Bard Peripheral Vascular, Incorporated,

Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:19-CV-135

Before Higginson, Willett, and Ho, Circuit Judges. Stephen A. Higginson, Circuit Judge: In this products liability case, plaintiffs, Dennis Nelson and his wife, Kathy Nelson (“the Nelsons”) sued defendants, C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (“Bard”), due to complications Dennis Nelson experienced after implantation of a filter used as a medical device. The Nelsons now appeal the district court’s grant of summary judgment to Bard on their failure to warn and design defect claims. We AFFIRM. Case: 21-60689 Document: 00516426750 Page: 2 Date Filed: 08/10/2022

No. 21-60689

I. A. The Nelsons brought this product liability action after Dennis Nelson experienced complications following the implantation of an inferior vena cava filter, called the Recovery IVC Filter (the “Filter”). Generally, such filters are placed inside the body in an effort to prevent blood clots from reaching critical organs such as the heart, lungs, or brain. The Filter, a “venous interruption device[] designed to prevent pulmonary embolism,” is designed, manufactured, marketed, and sold by Bard. It was approved by the FDA as an optional retrievable filter in 2003 and could thus be used permanently or temporarily. 1 Each Filter comes with an Information for Use pamphlet (“IFU”) that sets forth various pieces of information, including warnings, precautions, and instructions. Under the bolded “Warnings” heading, the IFU read, in relevant part: 8. Filter fracture is a known complication of vena cava filters. There have been reports of embolization of vena cava filter fragments resulting in retrieval of the fragment using endovascular and/or surgical techniques. Most cases of filter fracture, however, have been reported without any adverse clinical sequelae. 9. Movement or migration of the filter is a known complication of vena cava filters. This may be caused by placement in IVCs with diameters exceeding the appropriate labeled dimensions specified in the IFU. Migration of filters to the heart or lungs have been reported in association with improper deployment,

1 Though the parties appear to dispute whether the Filter was intended to be used on a permanent or temporary basis when implanted in Dennis Nelson, neither party provides a record cite directly supporting their position.

2 Case: 21-60689 Document: 00516426750 Page: 3 Date Filed: 08/10/2022

No. 21-60689

deployment into clots and/or dislodgment due to large clot