The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRAIG COUTURIER CIVIL ACTION
VERSUS NO. 19-12497
BARD PERIPHERAL VASCULAR, SECTION: “B”(2)
INC. AND C.R. BARD, INC.
ORDER AND REASONS
Before the Court is plaintiff’s Motion for New Trial (Rec.
Doc. 358) and defendants’ Opposition to Motion for New Trial (Rec.
Doc. 362). There is no reply. For the reasons discussed below,
IT IS ORDERED that the motion for new trial is DENIED.
I. FACTS AND PROCEDURAL HISTORY
This is a products liability action that was remanded to
this Court from the multidistrict litigation captioned In re:
Bard IVC Filters Products Liability Litigation, MDL 2641, in the
United States District Court for the District of Arizona.
Plaintiff Craig Couturier brought this action for personal
injuries suffered after being implanted with an Inferior Vena
Cava (“IVC”) filter medical device manufactured by defendants.
Rec. Doc. 6-9 at 25.
On May 6, 2011, plaintiff presented to the emergency room
with complaints of “headaches, nausea and vomiting.” Rec. Doc.
141-1 at 2. He was diagnosed with severe ear infections and
meningitis and underwent surgery to treat the ear infections.
Id. Following surgery, plaintiff “showed an upper
gastrointestinal bleed from a Mallory-Weiss tear.”1 Id. Plaintiff
required multiple transfusions and was anemic. Id. at 3. On May
2011, a scan of his lungs showed plaintiff had pulmonary emboli
in his left lower lobe.2 Id. Because of his anemia and
transfusions, plaintiff could not be placed on blood thinners,
but needed to be protected from further pulmonary emboli. Id.
Dr. Jose Mena,3 a board-certified vascular and
cardiothoracic surgeon, suggested implanting an IVC filter as a
potential treatment for plaintiff. Id. An IVC filter is a device
that is designed to filter or “catch” blood clots that travel
from the lower portions of the body to the heart and lungs. Rec.
Doc. 6-9 at 30. After Dr. Mena explained the risks and benefits
to plaintiff and his wife, and plaintiff’s wife signed a consent
form, Dr. Mena then implanted an Eclipse® IVC filter4 in
plaintiff. Rec. Doc. 141-1 at 7, 11-12.
1 A Mallory-Weiss tear is a tear of the tissue of the lower esophagus and is
most often caused by violent coughing or vomiting. Left untreated, it can
lead to anemia, fatigue, shortness of breath, and even shock. Mallory-Weiss
Tear, Johns Hopkins Medicine, CONDITIONS AND DISEASES,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/malloryweiss-
tear (last accessed June 9, 2021).
2 Deep vein thrombosis occurs when blood clots develop in the deep leg veins.
Once these clots reach the lungs, they are considered pulmonary emboli—
presenting risk to human health, including death. Rec. Doc. 6-9 at 25.
3 Dr. Mena practices at Ochsner Health Center and had experience implanting
IVC filters (including the Eclipse®) dating back to 2005. Rec. Doc. 141-1 at
12.
4 The Eclipse® filter is the fifth subsequent model of defendant’s IVC
filters. Predecessor models included the original Recovery® Vena Cava Filter,
followed by the G2®, G2® Express, and G2® X filters. Rec. Doc. 6-9 at 52.
In October 2016, plaintiff presented at the emergency room
and a CT showed that a “linear metallic foreign body” was found
in plaintiff’s right ventricle of his heart. Rec. Doc. 141 at 5.
One was found in his lung in November 2016. Id. Plaintiff
consulted with Dr. Mena and a cardiologist, Dr. Ghiath Mikdadi,
and both doctors agreed that the fragment in plaintiff’s heart
was stable and advised plaintiff to “leave it alone.” Rec. Doc.
122-2 at 7. Subsequent scans have shown the fragment is
unchanged in position and is stable. Id. However, as of December
2019, plaintiff’s IVC has been allegedly perforated in eight
places and he complains of shortness of breath, irregular
heartbeat, and hip pain. Rec. Doc. 141 at 5. Plaintiff alleges
he is at risk of the filter further penetrating adjacent organs,
which could result in symptomatic or life-threatening injuries.
Id.
Plaintiff filed his master short complaint for damages in the
United States Court for the District of Arizona on July 13, 2017.
Rec. Doc. 1 at 4. His short form complaint asserts thirteen causes
of action against defendants including strict liability and
negligent manufacturing defect (Counts I, V), design defect
(Counts III, IV), and failure to warn (Counts II, VII), negligent
misrepresentation (Count VIII), negligence per se (Count IX),
breach of express and implied warranty (Counts X, XI), fraudulent
misrepresentation and concealment (Counts XII, XIII), and
violation of state consumer laws (Count XIV). Rec. Doc. 1 at 3.
Plaintiff also alleges punitive damages. Id. at 4. The case was
then transferred to this Court on September 9, 2019. Rec. Doc. 5.
On July 8, 2021, the Court granted defendants’ motion for
summary judgment and dismissed all of plaintiff’s claims except
for his failure to warn claim. Rec. Doc. 303. The Court also denied
plaintiff’s motion for partial summary judgment on affirmative
defenses. Id. A jury trial began on July 12, 2021. Rec. Doc. 338.
On the first day of trial, the Court revised its summary judgment
ruling to reinstate plaintiff’s design defect claim. Trial Tr.
5:3-5:13. After nine days of trial, the jury returned a verdict
for defendants. Rec. Doc. 334. The Court entered judgment in favor
of defendants on July 28, 2021. Rec. Doc. 356. Plaintiff now
submits a motion for new trial pursuant to Rule 59 of the Federal
Rules of Civil Procedure. Rec. Doc. 358 at 1.
II. LAW AND ANALYSIS
a. Motion for New Trial Standard
Rule 59(a) of the Federal Rules of Civil Procedure provides
that “[t]he court may . . . grant a new trial on all or some of
the issues . . . after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.” Fed R. Civ. P. Rule 59(a)(1). Though “[t]he rule
does not specify what grounds are necessary to support such a
decision,” the Fifth Circuit has found that a new trial is
justified if “the district court finds the verdict is against the
weight of the evidence, the damages awarded are excessive, the
trial was unfair, or prejudicial error was committed in its
course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th
Cir. 1985) (citations omitted). But “[m]otions for a new
trial . . . cannot be used to raise arguments which could, and
should, have been made before the judgment issued.” Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990) (citation omitted).
Plaintiff argues that a new trial is warranted because the trial
was unfair and the court committed prejudicial error. Rec. Doc.
358 at 3.
b. Whether the Trial was Unfair
A trial judge may “question witnesses, elicit facts, clarify
evidence[,] and pace trial.” Cranberg v. Consumer Union of U.S.,
Inc., 756 F.2d 382, 391 (5th Cir. 1985). But any inquiries from
the Court must be aimed at clarifying or managing the trial. See
United States v. Williams, 809 F.2d 1072, 1086 (5th Cir. 1987).
And in questioning or commenting, a trial judge must maintain
objectivity and neutrality. See Johnson v. Helmerich & Payne, Inc.,
892 F.2d 422, 425 (5th Cir. 1990).
Plaintiff alleges that the Court inappropriately commented,
questioned, and intervened during the trial. He contends that the
Court’s comments during plaintiff’s opening statement of the trial
were unwarranted and imparted in the jury a mistaken impression of
misconduct by plaintiff’s counsel. Rec. Doc. 358 at 4-5.
Additionally, plaintiff argues that the Court repeatedly
interrupted witness testimony at the detriment of plaintiff. Rec.
Doc. 358 at 6-10. The Court’s actions, however, do not amount to
an unfair trial.
First, the Court’s comments were aimed at maintaining the
pace of trial. Plaintiff argues that “the Court’s intervention
into and commentary about Dr. Kandarpa’s testimony was to
arbitrarily exclude favorable, admissible testimony” so as “to
minimize any persuasive effect and confuse the jury.” Rec. Doc.
358 at 7. These interventions, however, were not arbitrary. The
Court clearly states in the pretrial conference proceedings and
the ruling on defendants’ motions in limine that Dr. Kandarpa’s
testimony was only partially admissible “to allow factual evidence
on the [EVEREST] study itself” and that limitations on Dr.
Kandarpa’s testimony was “subject to modification during trial.”
Rec. Doc. 355 at 12; see also Rec. Doc. 316-3 at 4 (stating that
Dr. Kandarpa’s testimony at trial would be limited to “what was
done” in Peterson v. C.R. Bard, No. 19-cv-01701 (D. Or. Apr. 20,
2021), and Johnson v. C.R. Bard, No. 19-cv-760 (W.D. Wis. May 24,
2021)). The Court’s efforts at cabining plaintiff’s witness
testimony to what was already decided in evidentiary motions and
pretrial rulings was well within the Court’s discretion to pace
trial. See Trial Tr. 431:9-432:2 (demonstrating the Court’s
efforts to avoid cumulative evidence).
Second, the Court’s questions throughout the trial were
directed to clarify witness testimony. Plaintiff cites multiple
occasions where the Court allegedly created an “appearance of
impartiality” throughout the trial. Rec. Doc. 358 at 8-11. He
claims that the Court would often “assist defense counsel” in
examining Defendant’s witnesses and “interrupt Plaintiff’s
questioning . . . to ask questions favorable to the defense.” Id.
at 9-10. But plaintiff fails to show that the Court acted
impartially. The Court interrupted both parties throughout the
trial to provide clarification for either the jury or the
testifying witness. Additionally, the Court instructed the jury to
not fault either party for technical difficulties, Trial Tr.
396:14-19, and to not take the Court’s comments to the lawyers “as
in any way demeaning their work.” Trial Tr. 383:6. Questioning
witnesses during a trial does not mean a court has deviated from
objectivity. Here, the Court maintained neutrality.
Third, even if any of the Court’s questions or comments could
be construed as beneficial to a party, which they weren’t, they
were cured by the Court repeatedly instructing the jury to
disregard any impression that the Court favored either party. See,
e.g., Trial Tr. 2422:4-12; see also Johnson, 892 F.2d at 426. A
limiting instruction is “not a universal panacea to prejudicial
remarks,” but a review of the trial transcript, coupled with the
Court’s multiple limiting instructions, convinces that the trial
was fair, and plaintiff was not prejudiced. See Johnson, 892 F.2d
at 426.
c. Whether the Court Committed Prejudicial Error
Plaintiff maintains that in refusing to admit certain
exhibits the Court committed prejudicial error. Rec. Doc. 358 at
7-8. During trial, the Court decided to exclude exhibits 225, 232,
233, 239, 241, 242, 243, 246, and 249 because they had been, or
were about to be, discussed in video deposition testimony.5 Trial
Tr. 1155:20-1169:18. Accordingly, the Court found their admission
to be cumulative. See, e.g., id. 1155:16-22, 1157:12-13.
“A court may grant a new trial when there is an erroneous
evidentiary ruling at trial.” See Jordan v. Maxfield & Oberton
Holdings, LLC, 9777 F.3d 412, 417 (5th Cir. 2020). The Court,
however, “may exclude relevant evidence if its probative value is
substantially outweighed by . . . undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Here, the Court was well within its discretion to exclude evidence
deemed cumulative. See Middleton v. Harris Press & Shear, Inc.,
796 F.2d 747, 752 (5th Cir. 1986) (finding evidence to be
5 Further, plaintiff twice volunteered during trial that the proposed
exhibits “were discussed in deposition testimony that’s been played.” Trial
Tr. 1155: 24-25; see also id. 1153:24-1154:1.
cumulative when the parties had already presented testimony
regarding the excluded evidence). Consequently, no prejudicial
error occurred.
New Orleans, Louisiana this 4th day of October, 2021
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE