(October 28, 2019) — A Philadelphia jury returned a $33.7 million verdict today after agreeing Rex Medical LP had defectively designed a blood clot-catching vein filter. The medical device perforated a major blood vessel and became permanently lodged inside a woman’s body.
Georgia resident Tracy Reed-Brown’s attorneys – Tim Goss and David Matthews – argued that defects in Rex’s “Option” filter, designed to be removable, made the filter in her case virtually impossible to remove. In fact, they alleged, the device’s design led to perforation of her inferior vena cava, as well as the puncturing of her pancreas, aorta, and renal vein.
$30.3 Million in Punitive Damages
Law360 writer Matt Fair reported that the verdict included $30.3 million in punitive damages, which followed a $3.4 million judgment the jury awarded for medical expenses and pain and suffering.
The case against Rex Medical is the first to go to trial as part of a mass tort program, as opposed to a class action case which pre-supposes that all plaintiffs have similar injuries and are part of a single “class.” A mass tort case, by contrast, weighs each claim according to the merits of the individual claimant. The mass tort program in Philadelphia for Rex cases is designed to consolidate nearly 800 lawsuits filed over Rex’s Option filters.
Surgeons in September 2010 placed an Option filter in Ms. Reed-Brown’s inferior vena cava. The vena cava is a large vein that carries blood from the lower part of the body to the heart. These filters are alleged – by Rex, Bard, Cook Medical, and other IVC filter makers – to help prevent pulmonary embolisms from blood clots traveling into the lungs. The plaintiff’s attorneys in this trial, however, questioned the manufacturers’ claims of efficacy of the filters in general, and the Rex Option filter in particular.
In 2016, Ms. Reed-Brown ended up back in the hospital. Doctors there discovered the device had perforated her IVC, as well as damaged other nearby organs. According to her attorneys, surgeons carried out a three-hour procedure in January 2017 in a vain attempt remove the device.
David Matthews, an attorney with Matthews & Associates representing Ms. Reed-Brown, told jurors during closing arguments on Friday that the device remained a clear and present danger to his client’s health as long as it remained in her body.
“If she leaves it in, the organs may fail,” said Mr. Matthews. “She may be injured, and it may kill her.”
Rex Defense Rebuttal
The defense, meanwhile, attempted to blame Ms. Reed-Brown’s complications on the surgeons who they said had failed to implant the device properly. The company also argued that Ms. Reed-Brown had never received any follow-up care or monitoring after she received the implant.
Ms. Reed-Brown’s attorneys said that blaming implanting physicians was a common theme for Rex. They presented email evidence that the company’s co-founder, James McGuckin, had derided at least one surgeon participating in a clinical trial as a “pussy” after that surgeon failed to apply the force which Mr. McGuckin said was needed to pull out the device from a patient.
Punitive Damages Argument
Tim Goss, an attorney with Freese & Goss PLLC representing Ms. Reed-Brown, tagged Mr. McGuckin as the embodiment of Rex’s culture during arguments over punitive damages on Monday afternoon.
Law360 reported that Mr. Goss also pointed to evidence his side had shown that “Rex had worked to convince doctors participating in clinical trials to withdraw initial opinions that complications their patients experienced after receiving the devices were not a result of defects.”
After Rex helped participating doctors alter their opinions in order to help the company change the results of the clinical trial, Rex was able to achieve the Food and Drug Administration’s 510k clearance to begin selling the Option filter in June 2009.
Rex later sold the product line to Argon Medical Devices Inc. in January 2016 for $160 million.
“This never should’ve happened, the company cheated its way through a broken process to get $160 million they didn’t deserve,” Mr. Goss told the jury on Monday.
An attorney representing Rex asked the jury to distinguish between the company and its co-founder.
“Rex is not Dr. McGuckin,” said Walter Swayze, an attorney with Lewis Brisbois Bisgaard & Smith LLP. “These are hardworking people, just like all of us, and to suggest that the most extreme remedy available under civil law should be exercised with a heavy hand is not something that Rex wants to stand here and agree with.”
Mr. Swayze added that, as of the end of the last calendar year, Rex’s net worth was nearly $7 million in the red.
Deliberations had started Friday, Oct. 25, after nearly two-and-a-half weeks of testimony, but the panel was forced to start the process over again on Monday after a juror was dismissed by Judge Michael Erdos. The judge had been shown evidence that the juror had posted comments about the case on Facebook over the weekend, something which the jurors had been warned about more than once, and something which all jurors are routinely warned about in any civil (or criminal) case.
The verdict is the fourth win for plaintiffs nationally in seven trials related to IVC filters sold by three different medical device companies – Cook Medical, Bard, and Rex.
Cook Medical IVC Filter Cases
Juries in cases against Cook Medical Inc. returned verdicts of $1.4 million and $3 million, respectively, in trials in Houston and as part of a federal multidistrict litigation program in Indianapolis.
A third case against Cook in Indianapolis – a defense pick in which the plaintiff had had an IVC filter successfully removed – resulted in a verdict for the company.
Bard IVC Filter Cases
Three IVC filter cases have been tried against Bard as part of a federal multidistrict litigation program in Arizona. The first case, which began in April 2018, resulted in a $3.6 million award against Bard, before juries returned defense verdicts in two later trials.
Ms. Reed-Brown is represented by Rosemary Pinto of Feldman & Pinto, David Matthews and Mark Chavez of Matthews & Associates, and Tim Goss, Peter de la Cerda, Kevin Edwards and Yvette Diaz of Freese and Goss PLLC.
Rex Medical is represented by Walter Swayze and Megan Grossman of Lewis Brisbois Bisgaard & Smith LLP.
The case is Tracy Reed-Brown v. Rex Medical LP et al., case number 170300241, in the Court of Common Pleas of Philadelphia County, Pennsylvania.
• Philly Jury hits Vein Filter Co. with $34M Judgment