In Johnson v. C.R. Bard, Inc., Case No. 22-2610 (7th Cir. August 11, 2023), plaintiff brought suit alleging that defendant’s Meridian intravascular filter was defectively designed because it failed to warn medical providers of risks that filter would migrate from its implantation site and fracture in plaintiff’s heart.
The Seventh Circuit affirmed the District Court’s determination that defendant was not entitled to new trial, where the jury found defendant strictly liable on failure to warn theory, and where plaintiff’s expert provided an undisclosed opinion that was contrary to opinion that expert had given in pre-trial report. Although Seventh Circuit agreed with defendant that the expert’s new opinion regarding direction and magnitude of filter migration violated Rule 26(e), defendant’s objection to expert’s testimony at the trial court level did not pertain to instant issue regarding harm done during plaintiff’s case-in-chief, and record otherwise showed that the trial court had ruled in defendant’s favor each time defendant raised non-disclosure related issues during expert’s testimony.
Also, the trial court did not abuse its discretion in allowing plaintiff’s treating physician to testify out-of-order, even though plaintiff had rested her case-in-chief prior to physician’s testimony, or in allowing physician to testify regarding her decision-making process in selecting defendant’s filter for plaintiff. Also, the Court held that, defendant was not entitled to jury instruction that would have establish rebuttable presumption that defendant’s filter was not defective because it had received 510(k) clearance from FDA, where 510(k) clearance did not in any way denote official approval of said device.