Case: 21-60689 Document: 00516426750 Page: 1 Date Filed: 08/10/2022
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 21-60689
`
`
`Dennis Nelson; Kathy Nelson,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`August 10, 2022
`
`Lyle W. Cayce
`Clerk
`
`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
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`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
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`

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`deployment into clots and/or dislodgment due to large clot
`burdens.
`(emphasis added). The IFU also contained a section titled “Potential
`Complications,” and this section included the following information (bold at
`end in original):
`
`Procedures requiring perculaneous interventional techniques
`should not be attempted by physicians unfamiliar with the
`possible complications. Complications may occur at any time
`during or after the procedure.
`Possible complications include, but are not limited to, the
`following:
`• 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 also been
`reported in association with improper deployment,
`deployment into clots and/or dislodgment due to large
`clot burdens.
`• 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.
`• Perforation or other acute or chronic damage of the
`IVC wall.
`• Acute or recurrent pulmonary embolism. This has been
`reported despite filter usage. It is not known if thrombi
`passed through the filter, or originated from superior or
`collateral vessels.
`• Caval thrombosis/occlusion.
`
`3
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`time of
`
`• Extravasation of contrast material at
`venacavogram.
`• Air embolism.
`• Hemaloma or nerve injury at the puncture site or
`subsequent retrieval site.
`• Hemorrhage.
`• Restriction of blood blow.
`• Occlusion of small vessels.
`• Distal embolization.
`• Infection.
`• Intimal tear.
`• Stenosis at implant site.
`All these above complications have been associated with
`serious adverse events such as medical intervention and/or
`death. The risk/benefit ratio of any of these complications
`should be weighed against the inherent risk/benefit ratio
`for a patient who is at risk of pulmonary embolism without
`intervention.
`The Filter was restricted to sale “by or on the order of a physician.”
`
`As early as May 2004, Bard internal emails referencing the Filter
`
`began to note that there were complications associated with it. Then, on
`December 17, 2004, Bard’s medical director issued an internal document
`titled “Health Hazard Evaluation” concerning a consultant’s report on the
`Filter. The internal Bard document stated, in part:
`
`An analysis of reporting rates of serious adverse events for all
`inferior vena cava filters, as determined by analysis of the
`MAUDE and IMS databases by a consultant, revealed that
`reporting rates for Recovery are significantly higher than other
`filters. However, these databases are subject to known,
`
`4
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`significant biases that make calculation or comparison of
`incidence rates among products unreliable and inadvisable . . . .
`Nevertheless, the number of reported complaints, and the size
`of the differences between Recovery and other filters, warrant
`further investigation.
`The document continued:
`
`filter migration (movement), IVC
`Reports of death,
`perforation, and filter fracture associated with Recovery filter
`were seen in the MAUDE database at reporting rates that
`were 4.6, 4.4, 4.1, and 5.3 higher, respectively, than reporting
`rates for all other filters. These differences were all statistically
`significant. Recovery’s reporting rates for all adverse events,
`filter fracture, filter migration, and filter migration deaths were
`found to be significantly higher than those for other removable
`filters.
`On May 16, 2005, Dr. Daniel DeVun implanted Dennis Nelson with a
`
`Filter. Dr. DeVun performed this procedure as a prophylactic measure to
`prevent deep venous thrombosis and pulmonary embolism prior to Dennis
`Nelson’s temporary cessation of anticoagulation medication in anticipation
`of a liver transplant. Medical imaging taken fourteen years later in 2019
`revealed that the Filter had fractured. Some of the struts of the Filter had
`penetrated through the inferior vena cava wall, and some migrated to other
`parts of Nelson’s body. Nelson underwent three surgical procedures to
`remove the Filter and its fragments. Though the procedures were partially
`successful, one fragment remains in Nelson’s pulmonary artery.
`
`B.
`
`In September of 2017, the Nelsons brought a product liability action
`
`against Bard, as a part of a multidistrict litigation suit. The case was
`transferred to the Southern District of Mississippi in September of 2019. In
`March of 2021, both the Nelsons and Bard filed motions for summary
`
`5
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`judgment. Thereafter, the district court held a hearing on the dueling
`motions.
`
`
`On August 6, 2021, the district court granted Bard’s motion for
`summary judgment. It first addressed the Nelsons’ failure to warn and design
`defect claims under the Mississippi Products Liability Act (MPLA). The
`court held that the IFU “expressly warned” the treating physician of the
`“very complications” that Nelson ultimately suffered; thus, the warnings
`were adequate as a matter of law. The district court also addressed Plaintiffs’
`theory that the warning was inadequate “because the IFU did not list the
`comparative rates of occurrence of complications relative to a predecessor
`Bard device and other IVC filters,” and held that it had no merit. The court
`reasoned that Mississippi law does not support the conclusion that a failure
`to provide comparative-risk information renders a warning inadequate and
`that requiring comparative risk information to be included would be a
`problematic slippery slope.
`
`On the design defect claim, the district court held that even though
`
`the Nelsons’ expert, Dr. McMeeking, had testified to a design defect, the
`Nelsons had nevertheless “failed to adduce sufficient evidence to create [a]
`jury question on the issue of causation in fact,” since “[t]here is no testimony
`or evidence cited by the Plaintiff that ties the specific design defect identified
`by Dr. McMeeking to the damages for which Plaintiffs seek recovery.”
`Alternatively, the district court held that the Nelsons had failed to raise a
`genuine issue of material fact as to a feasible design alternative under
`Mississippi law.2 The Nelsons appealed.
`
`
`
`2 It is notable that the Nelsons originally raised numerous other claims, including,
`inter alia, negligent misrepresentation and fraudulent concealment. It appears that the
`Nelsons agreed, however, that these claims were “subsumed” in their MPLA failure to
`
`6
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`

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`No. 21-60689
`
`II.
`
`We review a grant of summary judgment de novo. Doe v. United States,
`
`831 F.3d 309, 317 (5th Cir. 2016). Summary judgment should be granted “if
`the movant shows that there is no genuine dispute as to any material fact and
`the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
`56(a). When weighing the evidence at summary judgment, all factual
`inferences are viewed in the light most favorable to the party opposing the
`motion. Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005).
`
`In diversity jurisdiction actions, the substantive law of the state in
`
`which the district court hearing the action sits controls. Erie R.R. v.
`Thompkins, 304 U.S. 64, 78 (1938); Capital City Ins. Co. v. Hurst, 632 F.3d
`898, 902 (5th Cir. 2011). Both parties agree that Mississippi law controls this
`case. Under Mississippi law, the Mississippi Product Liability Act (MPLA)
`“applies ‘in any action for damages caused by a product,’” including actions
`asserting failure to warn and design defect claims. Elliott v. El Paso Corp., 181
`So. 3d 263, 268 (Miss. 2015) (quoting MISS. CODE ANN. § 11-1-63).
`
`III.
`
`A.
`
`“In a failure-to-warn case, a plaintiff must show by the preponderance
`
`of the evidence that the product was defective because it failed to contain
`adequate warnings or instructions, the defective condition rendered the
`product unreasonably dangerous to the user or consumer, and the defective
`and unreasonably dangerous condition of the product proximately caused the
`
`
`
`warn and design defect claims; regardless, the Nelsons raise no issue relating to the district
`court’s resolution of them.
`
`7
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`damages for which recovery is sought.” Id. at 273 (cleaned up). The MPLA
`describes adequate warnings or instructions as follows:
`
`(i) In any action alleging that a product is defective because it
`failed to contain adequate warnings or instructions pursuant to
`paragraph (a)(i)2 of this section, the manufacturer, designer or
`seller shall not be liable if the claimant does not prove by the
`preponderance of the evidence that at the time the product left
`the control of the manufacturer, designer or seller, the
`manufacturer, designer or seller knew or in light of reasonably
`available knowledge should have known about the danger that
`caused the damage for which recovery is sought and that the
`ordinary user or consumer would not realize its dangerous
`condition.
`(ii) An adequate product warning or instruction is one that a
`reasonably prudent person
`in
`the
`same or
`similar
`circumstances would have provided with respect to the danger
`and that communicates sufficient information on the dangers
`and safe use of the product, taking into account the
`characteristics of, and the ordinary knowledge common to an
`ordinary consumer who purchases the product; or in the case
`of a prescription drug, medical device or other product that is
`intended to be used only under the supervision of a physician
`or other licensed professional person, taking into account the
`characteristics of, and the ordinary knowledge common to, a
`physician or other licensed professional who prescribes the
`drug, device or other product.
`MISS. CODE ANN. § 11-1-63(c). Because the district court granted
`summary judgment for Bard on the failure to warn claim, we must decide
`whether the Nelsons are able to show a genuine dispute of material fact so
`that the claim should have gone to the jury.
`
`We begin by addressing the district court’s holding that the warnings
`
`were adequate as a matter of law. “An adequate warning is one reasonable
`under the circumstances.” Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d
`
`8
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`31, 55 (Miss. 2004). “To be reasonable, the warning should neither
`understate nor overstate the known risks associated with the use of a
`particular product.” Id. at 58 (quoting Thomas v. Hoffman-Laroche, Inc., 949
`F.2d 806, 815 (5th Cir. 1992)). Ordinarily, the adequacy of a warning is a
`factual matter that will be determined by the trier of fact. Union Carbide Corp.
`v. Nix, 142 So. 3d 374, 389 (Miss. 2014).
`
`Here, the district court held that the IFU “expressly warned” the
`treating physician of the “very complications” that Dennis Nelson
`ultimately suffered; thus, the warnings were adequate as a matter of law.
`Indeed, the IFU in its bolded “Warnings” explicitly warns of fracture and
`migration as “known complication[s],” the very complications that allegedly
`caused Nelson’s injuries.
`
`This Court has previously confirmed that “[i]n Mississippi, a warning
`may be held adequate as a matter of law where the adverse effect was one that
`the manufacturer specifically warned against.” Austin v. Will-Burt Co., 361
`F.3d 862, 868 (5th Cir. 2004); see also Williams v. Manitowoc Cranes, L.L.C.,
`898 F.3d 607, 616 (5th Cir. 2018) (same). In Austin, a television news van’s
`telescoping mast “became entangled with the power lines, sending 8,000
`volts through the mast and electrifying the van,” and an employee touched
`the van leading to “a fatal electric shock.” 361 F.3d at 864. This Court held
`that the “warnings on the mast clearly connected contact with power lines
`and risk of death” and, thus, they were adequate. Id. at 868-69. This Court
`affirmed the district court’s grant of summary judgment to defendants. Id. at
`864.
`
`Instructively, in Williams v. Manitowoc Cranes, the dispute over the
`adequacy of the warning “center[ed] on whether Manitowoc needed to warn
`operators about the specific hazard that counterweights could fall during a tip-
`over.” 898 F.3d at 616. Manitowoc argued that warning about the general
`
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`hazards of tipping over, combined with instructions about how to avoid a tip-
`over, constituted adequate warning. Id. This Court disagreed, holding that
`the jury had an adequate basis for finding the warning inadequate and finding
`that a reasonably prudent person “would have informed crane operators
`about the unique danger posed by falling counterweights.” Id. at 617. The
`Court explained:
`
`Manitowoc[] . . . failed to warn about the specific “adverse
`effect” of a counterweight falling, crushing the operator cab,
`and ejecting the operator from the cab. The . . . [manual]
`provided no guidance about precautions for avoiding the falling
`counterweight hazard. Instead, it discussed only in broad terms
`the harms that could result from a tip-over.
`We cannot conclude as a matter of law that Manitowoc
`adequately warned crane operators about
`the
`falling
`counterweight danger.
`Id. at 617. In between these confirming decisions from our Court, the
`Mississippi Supreme Court itself issued the decision Johnson & Johnson v.
`Fortenberry, 234 So. 3d 381 (Miss. 2017). The Court explained that the label
`at issue “warned physicians that tardive dyskinesia might develop in patients
`treated with antipsychotic drugs” and additionally “warned that whether
`antipsychotic drug products differ in their potential to cause tardive
`dyskinesia was unknown.” Id. at 393. The Court therefore held that the label
`warned the treating doctor “specifically of the danger of tardive dyskinesia
`in no uncertain terms and was sufficiently adequate as a matter of law.” Id.
`
`Taken together, these cases support the district court’s holding that
`the IFU warnings were adequate as a matter of law. As in Fortenberry and
`Austin, and unlike in Williams, where the defendants failed to specifically
`address the hazard of falling counterweights, the IFU warned of the exact
`complications that allegedly caused Dennis Nelson’s injuries. Nor did it do
`so in uncertain terms: the IFU emphasized that fracture and migration are
`
`10
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`“known complication[s].” The Nelsons do not persuasively argue that there
`were any specific complications of the Filter that the IFU failed to warn of.3
`
`Instead, the Nelsons primarily argue that the warning was inadequate
`because Bard failed to disclose comparative rates of risk associated with
`other, similar filters. The district court noted the problematic policy
`concerns that would follow potential liability for failure to include comparative
`device risk information in warnings. We do not address policy considerations,
`however perceptive; nor do we conclusively decide as a matter of Mississippi
`law whether a warning, using other language and in other circumstances,
`might be inadequate for failing to include undisclosed same-device
`“dangers” (plural, as in the statute). Cf. Munson v. C.R. Bard, Inc., 561 F.
`Supp. 3d 655 (N.D. Miss. 2021) (statutory analysis of MPLA).4 Instead, we
`hold only that the district court correctly entered summary judgment here,
`on the Nelsons’ inadequate warning claim because the Nelsons fail to
`discuss, in any meaningful way, the warning language itself.
`
`Rather than explaining why the text of the warning was inadequate, the
`Nelsons argue to us that Bard concealed and omitted risk data and thereby
`provided “insufficient warning of
`incidence and seriousness” and,
`specifically, that Bard failed to warn physicians of high complication rates
`
`
`
`3 The Nelsons spend a portion of the failure to warn section of their brief apparently
`arguing that the IFU warning was inadequate because it lacked information addressing the
`timeline of removal. Bard responds that the Nelsons forfeited this argument by failing to
`raise it in the district court. We agree. Though the Nelsons did discuss “permanent” filters
`in detail before the district court, it was within the context of comparative risk, not in the
`context of language in the IFU. Accordingly, we hold that they have forfeited the
`argument. See Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397-98 (5th Cir. 2021) (holding
`that a plaintiff forfeits an argument “that a fact dispute precluded summary judgment by
`failing to raise it first before the district court”).
`4 This case was never raised by the Nelsons, but we have benefitted from its
`statutory analysis.
`
`11
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`that it was aware of at the time. They argue that the information that was
`concealed was so “egregious” that the “IFU is per se inadequate.” In making
`this concealed-information argument, they rely on internal documents. Yet
`in Fortenberry, the Mississippi Supreme Court explained that failure to warn
`cases must be based upon the warning label itself—its text and language—
`rather than internal documents:
`
`Taylor’s attempt to prove her failure to warn claims through
`Janssen’s marketing materials and
`internal documents
`expanded the claim beyond the statutory scope of the Products
`Liability Act. Based on the terms of the Act, enacted in 1993,
`the only pertinent question is whether the prescription drug
`label contained adequate warnings or instructions.
`. . .
`The Court does not consider Janssen’s marketing materials or
`internal documents as support of Taylor’s failure to warn claim
`under the Products Liability Act in determining the adequacy
`of the Risperdal label. Taylor’s attempt to support her failure
`to warn claim with Janssen’s marketing materials and internal
`documents improperly expands the statutory scope of her
`claim.
`234 So. 3d at 393 (citations omitted).5
`
`Like the plaintiff in Fortenberry, the Nelsons quote from internal Bard
`emails and the 2004 Health Hazard Evaluation to assert that “Bard did not
`set forth its own internal data or information concerning the failure rates of
`
`
`
`5 It is noteworthy that in Fortenberry itself, the label at issue affirmatively stated that
`“[w]hether antipsychotic drug product differ in their potential to cause Tardive Dyskinesia
`is unknown,” Fortenberry, 234 So. 3d at 389, yet the Court still held, as to the failure to
`warn claim, that comparative risks drawn from internal documents were not pertinent to
`the label’s adequacy. Id. at 393. By contrast, the Court in Fortenberry explicitly affirmed that
`a plaintiff can draw inferences from internal documents when that plaintiff is pursuing a
`negligent misrepresentation claim. Id. at 394.
`
`12
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`the Recovery filter in the IFU insert provided in the packaging.” Yet the
`Nelsons fail to address the language of the warning itself and how it was
`inadequate, as required by Fortenberry. As noted, Bard’s warning label
`warned in two different locations that Filter fracture and migration were
`“known complication[s].” The Nelsons have thus failed to raise a genuine
`issue of material fact as to their failure to warn claim.
`
`B.
`
`
`“In a design-defect claim under the MPLA, the plaintiff must prove,
`by the preponderance of the evidence, that ‘the product was designed in a
`defective manner,’ that ‘[t]he defective condition rendered the product
`unreasonably dangerous to the user or consumer,’ and that ‘[t]he defective
`and unreasonably dangerous condition of the product proximately caused the
`damages for which recovery is sought.’” Elliot, 181 So. 3d at 271 (quoting
`MISS. CODE ANN. § 11-1-63(a)(i)-(iii)). Additionally:
`
`In any action alleging that a product is defective because of its
`design . . . , the manufacturer, designer or product seller shall
`not be
`liable
`if the claimant does not prove by the
`preponderance of the evidence that at the time the product left
`the control of the manufacturer, designer or seller:
`(i) The manufacturer or seller knew, or in light of reasonably
`available knowledge or in the exercise of reasonable care should
`have known, about the danger that caused the damage for
`which recovery is sought; and
`(ii) The product failed to function as expected and there
`existed a feasible design alternative that would have to a
`reasonable probability prevented the harm. A feasible design
`alternative is a design that would have to a reasonable
`probability prevented the harm without impairing the utility,
`usefulness, practicality or desirability of the product to users or
`consumers.
`MISS. CODE ANN. § 11-1-63(f).
`
`13
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`The district court granted summary judgment to Bard on the design
`
`defect claim, holding that the Nelsons failed to show how the design defect
`they highlighted—“tilting”—caused the fracturing and migration that led to
`the complications experienced by Dennis Nelson. The district court also held
`that the Nelsons failed to show a genuine issue of material fact as to a feasible
`alternative design, because they cited to no testimony explaining that their
`proposed alternative design would have “prevented the harm without
`impairing the utility, usefulness, practicality, or desirability” of the Filter.
`We affirm the district court’s first holding and so do not reach the second.
`
`Bard argues that the Nelsons’ design defect claim must fail because
`they had no expert testimony on specific causation, i.e., an expert who could
`have testified that a design defect caused the injuries suffered by Dennis
`Nelson. Although no requirement exists that an expert must always connect
`the dots of specific causation,6 we agree with the district court that the
`Nelsons failed to draw its attention, at the summary judgment stage, to
`evidence that the Filter’s allegedly defective design proximately caused the
`device to fracture and migrate after it had been implanted in Dennis Nelson.
`The district court was explicit about this missing piece:
`
`[R]egardless of whether Mississippi law requires that causation
`be addressed in terms of general and specific causation, it is an
`
`
`6 Bard relies on Vaughn v. Miss. Baptist Medical Center, 20 So. 3d 645 (Miss. 2009).
`In that case the Mississippi Supreme Court held that “Vaughn’s argument that lay-witness
`testimony can establish the element of proximate cause is without merit” because “[a] lay
`witness cannot render an opinion as to whether the symptoms exhibited by Vaughn were
`associated with infection.” Id. at 654. But the Court expressly limited its holding,
`explaining that although “diagnosing symptoms has been explicitly held by this Court to be
`outside of the realm of a lay person and an activity that requires a medical expert,” “a
`medical expert is not necessary in instances in which a layman can observe and understand
`the negligence as a matter of common sense and practical experience.” Id. at 653-54. Thus,
`while Mississippi law requires expert testimony on specific causation in some cases, it does
`not require such testimony across the board.
`
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`element under the MPLA that a plaintiff show that the
`defective design, which renders the product unreasonably
`dangerous, proximately caused the damages for which
`recovery is sought. See Miss. Code. Ann. § 11-1-63(a)[](iii).
`The Court finds that Plaintiffs have failed to adduce sufficient
`evidence to create [a] jury question on the issue of causation in
`fact. There is no testimony or evidence cited by the Plaintiff
`that ties the specific design defect
`identified by Dr.
`McMeeking to the damages for which Plaintiffs seek recovery.
`His testimony addresses how the design can cause the filter to
`tilt, but here the issue is fracturing and migration. There is no
`evidence submitted to the Court that ties a design defect to
`these particular issues.
`The Nelsons make broad statements throughout their brief that
`presume a design defect must have caused Dennis Nelson’s complications—
`e.g., “[h]ow could [Nelson] have a retained fragment in his lung absent
`design-induced fracture and migration?”—but actual evidence had to be
`identified to the district court in order to advance beyond the summary
`judgment stage for a design defect claim. See Elliot, 181 So. 3d at 271; Miss.
`Code. Ann. § 11-1-63(a)(iii); Fed. R. Civ. P. 56(a). Although not
`quoted to the district court in the summary judgment proceedings, we
`discern in one excerpt of Dr. McMeeking’s testimony his opinion pointing in
`the direction of causation—where he used a ruler to testify to the “geometric
`effect” that tilt brought about, asserting that “the limb will fracture by fatigue
`that much sooner because of this geometric effect that is associated with
`perforation of the limb through the wall of the IVC.” However, the Nelsons
`failed to direct the district court’s attention to this quote, and so we do not
`consider it here. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)
`(“Rule 56 does not impose upon the district court a duty to sift through the
`record in search of evidence to support a party’s opposition to summary
`judgment.” (citation omitted)); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,
`
`15
`
`

`

`Case: 21-60689 Document: 00516426750 Page: 16 Date Filed: 08/10/2022
`
`No. 21-60689
`
`458 (5th Cir. 1998) (“The party opposing summary judgment is required to
`identify specific evidence in the record and to articulate the precise manner
`in which that evidence supports his or her claim.”).7
`
`IV.
`
`
`For the reasons set forth above, we AFFIRM the judgment of the
`district court. All other pending motions are DENIED.
`
`
`
`7 After choosing not to file a reply brief, the Nelsons brought a binder with several
`tabs to oral argument and filed a post-argument letter. Bard moved to strike the binder and
`letter or allow additional briefing on the matter. The Court has not referenced or examined
`the binder, and it was not entered into the record, so striking it is unnecessary.
`
`16
`
`