[00:00:01] Speaker 04:
Without further ado, I wanna say that most, all but one of our cases are submitted on the briefs today.

[00:00:11] Speaker 04:
We have one case for argument.

[00:00:13] Speaker 04:
So I'll just mention them for the record.

[00:00:16] Speaker 04:
First, Antonio Cruz-Cardenas, First Mayor Carlin, number 2312580 is submitted on briefs.

[00:00:29] Speaker 04:
Then Erica second, Erica, Elizabeth, Abel, to Lopez versus Merrick Garland is submitted on the briefs.

[00:00:53] Speaker 04:
Number 234312, Donovan.

[00:01:01] Speaker 04:
Pedraza Madrigal versus Garland is submitted on the briefs.

[00:01:09] Speaker 04:
And then Caravantes versus Garland, which is number 234327, is submitted on the briefs.

[00:01:25] Speaker 04:
And the lawyers for fair reciprocal admission

[00:01:31] Speaker 04:
versus the United States, number 242213, is submitted on the briefs.

[00:01:43] Speaker 04:
And that brings us to our case on the argument docket, which is Bennett versus Bard.

[00:02:01] Speaker 04:
number 242471.

[00:02:07] Speaker 04:
This case is set for 15 minutes per side.

[00:02:16] Speaker 04:
Because we only have one case being argued if counsel go over their argument time initially, I'll try to add a minute or two for rebuttal, but the best practice

[00:02:36] Speaker 04:
if you can do it as an advocate, as an advocate is to reserve some of your argument time for rebuttal and stop before it's all gone.

[00:02:50] Speaker 04:
Okay, so we should proceed with Appellant's argument now.

[00:02:59] Speaker 01:
Good morning, Your Honors.

[00:03:01] Speaker 01:
My name is Alisa Yarnell for the Appellants.

[00:03:03] Speaker 01:
May it please the Court.

[00:03:05] Speaker 01:
I would like to reserve five minutes for rebuttal.

[00:03:08] Speaker 04:
Yeah, so watch the clock yourself because it's your responsibility.

[00:03:12] Speaker 04:
But if you forget, I'll try to remind you.

[00:03:17] Speaker 01:
Absolutely, thank you, Your Honor.

[00:03:19] Speaker 01:
Your Honors, the central question in this appeal is when did the filter malfunction and cause Mr. Bennett injury?

[00:03:26] Speaker 01:
The district court never answered this question, and it erred by granting Bard summary judgment without doing so in three primary ways that I would like to discuss today.

[00:03:37] Speaker 01:
First, Bard bore the burden to prove the timing of injury caused by the malfunction of the filter.

[00:03:45] Speaker 01:
When I say malfunction, I'm referring to migration, tilt, perforation, or fracture as alleged in the complaint.

[00:03:52] Speaker 01:
Bard did not meet its burden, and the district were aired by ignoring it.

[00:03:57] Speaker 00:
When you say Bard has to meet its burden, are you saying that Bard has to confess that their product was defective?

[00:04:10] Speaker 01:
No, Your Honor, that is not necessary or at least not, it's not necessarily necessary for that to be the case.

[00:04:18] Speaker 01:
What BARD has to do is demonstrate by meeting its affirmative burden, which is the equivalent of a directed verdict, a burden, to say that under the evidence, there is no other conclusion that a jury could reach other than that

[00:04:37] Speaker 01:
The injury that was caused, any injury that was caused by the defect, the malfunction alleged in the complaint had to have happened prior to the statute of limitations time.

[00:04:51] Speaker 00:
So I'll confess, counsel, that in some aspects of the statute of limitations, I find California law confusing.

[00:05:00] Speaker 00:
Perhaps that's just me.

[00:05:02] Speaker 00:
But the way I read the cases is that once the party has suffered actual and appreciable harm, and I'm going to put aside the question of sorting

[00:05:19] Speaker 00:
different harms, but actual and appreciable harm, the statute begins running.

[00:05:25] Speaker 00:
Is that correct?

[00:05:27] Speaker 01:
That is correct, Your Honor.

[00:05:29] Speaker 01:
And the question is, what kind of harm?

[00:05:31] Speaker 01:
And the answer to that question is harm that's caused by the defect that's alleged in the complaint.

[00:05:39] Speaker 00:
Are you familiar?

[00:05:41] Speaker 00:
I know you must be familiar with it because you cited it in your opening brief.

[00:05:46] Speaker 00:
the Supreme Court of California's Push's case or Push's versus Philip Morris?

[00:05:53] Speaker 01:
Yes, Your Honor.

[00:05:54] Speaker 00:
Okay.

[00:05:55] Speaker 00:
You're not contending that this case comes within the Push's latent defect rule, are you?

[00:06:05] Speaker 01:
I don't know.

[00:06:06] Speaker 01:
In some ways, yes.

[00:06:10] Speaker 01:
It's not exactly the same thing in that case.

[00:06:16] Speaker 01:
Obviously, it's smoking, right?

[00:06:18] Speaker 01:
And smoking can cause harm eventually.

[00:06:24] Speaker 01:
based on an act that's happened at one time.

[00:06:26] Speaker 01:
And what we're not here saying is that based on an act that happened one time, a long time ago, that that act later caused an injury that isn't known.

[00:06:38] Speaker 01:
What we have here is a situation where a medical device is in place and it's functioning as intended until one day it does not and it malfunctions.

[00:06:52] Speaker 01:
What I would analogize this to is hypothetical.

[00:06:57] Speaker 01:
Let's take an example of my office chair.

[00:07:01] Speaker 01:
Let's say that my office chair is uncomfortable.

[00:07:04] Speaker 01:
It hurts my back.

[00:07:05] Speaker 01:
I've been sitting on it for five years.

[00:07:06] Speaker 01:
I say this office chair is uncomfortable.

[00:07:08] Speaker 01:
It hurts my back.

[00:07:09] Speaker 01:
I go to the doctor.

[00:07:10] Speaker 01:
The doctor says, hmm, yeah, you have some back pain.

[00:07:14] Speaker 01:
Maybe you should get a new chair.

[00:07:17] Speaker 01:
Maybe you take some medication for it to alleviate the pain.

[00:07:22] Speaker 01:
Now let's say that this chair also has a defect in it that sometimes this type of chair can collapse without warning and injure the person who's sitting in it.

[00:07:33] Speaker 01:
And one day I'm sitting in this chair and it does and it injures my back and now I need surgery and I have all these other problems that are caused by the collapse of this chair.

[00:07:46] Speaker 01:
Excuse me.

[00:07:47] Speaker 01:
So my cause of action against the designer or manufacturer of my chair accrues when the defect in the chair that caused it to collapse caused me injury.

[00:08:00] Speaker 01:
It doesn't accrue when I bought the chair.

[00:08:03] Speaker 01:
It doesn't accrue when sitting in the chair as it's meant to be sat in bothers my back and it's uncomfortable.

[00:08:11] Speaker 00:
It accrues when the defect causes an injury.

[00:08:13] Speaker 00:
Your contention is

[00:08:16] Speaker 00:
that what to me is the clear evidence that your client was on notice that his varicose veins problem was related to possible problems with the filter.

[00:08:28] Speaker 00:
Your position is that's irrelevant because to you, the varicose veins problem is so different in kind and nature from the alleged fracture problems that it's apples and oranges for the purpose of the statute of limitations.

[00:08:46] Speaker 01:
Your Honor, it's our position that the varicose veins, if we assume that they were related to the filter and caused by the filter, and I will agree with you that the record indicates that my client believed that that was the case, they're actually, if you look at those same records, it's unclear whether a doctor ever told him that that was true.

[00:09:11] Speaker 00:
Didn't they schedule a removal because of the varicose veins?

[00:09:16] Speaker 01:
You scheduled the removal.

[00:09:18] Speaker 01:
There are a lot of different symptoms that my client was experiencing leading up to this period.

[00:09:25] Speaker 01:
And so I would not say that the medical records are very specific or clear as to whether or which of these his doctors actually believed were being caused by or related to the filter.

[00:09:40] Speaker 01:
The fact of the matter is that the filter was no longer necessary for its original purpose.

[00:09:45] Speaker 01:
And at that point, it makes sense to remove it if there's a possibility that it will alleviate some of those symptoms.

[00:09:52] Speaker 01:
That doesn't mean that the filter has malfunctioned in a way that the complaint alleges and that in a way that

[00:10:01] Speaker 01:
he has suffered actionable injury in the same way that it makes sense for me to replace my office chair if it's hurting my back.

[00:10:08] Speaker 01:
But that doesn't mean I have a cause of action against the manufacturer or against the designer for a defect in it.

[00:10:16] Speaker 01:
If the defect is that the chair collapses, I only have a cause of action

[00:10:21] Speaker 01:
when the chair collapses and causes me injury.

[00:10:23] Speaker 01:
And that's the situation here where the defect that is alleged in the complaint is the defect of the risk of migration, tilt, perforation, or fracture.

[00:10:37] Speaker 01:
Excuse me.

[00:10:38] Speaker 01:
And Mr. Bennett had to be injured by that defect in order to have a cause of action.

[00:10:43] Speaker 01:
Otherwise, his cause of action simply did not accrue, even though he knew about it, even though there were other negative symptoms that he attributed to the filter, and even if they were, even if the filter was causing some of those other symptoms.

[00:10:57] Speaker 04:
Counsel, I don't mean to interrupt.

[00:11:01] Speaker 00:
No, please go ahead, Judge.

[00:11:02] Speaker 04:
But if counsel has completed an answer to Judge Bennett,

[00:11:09] Speaker 04:
question.

[00:11:10] Speaker 04:
I have a couple of questions and Judge Ezra might also have questions.

[00:11:17] Speaker 04:
So let me just put mine on the table because they're short and simple.

[00:11:24] Speaker 04:
First, the dismissal based on a statute of limitations is an affirmative defense, correct?

[00:11:38] Speaker 01:
Passure of limitations is an affirmative defense.

[00:11:41] Speaker 04:
And then second, under our law, doesn't Bard have the burden of proof to prove us an affirmative defense?

[00:11:55] Speaker 01:
Yes, Your Honor, absolutely.

[00:11:57] Speaker 01:
That is Bard's burden to prove.

[00:11:59] Speaker 04:
So Bard would have to be dismissed here on a summary judgment.

[00:12:08] Speaker 04:
or dismissed either by summary judgment with facts or a dismissal based on the pleadings would have to show that the injury here was

[00:12:32] Speaker 04:
was not distinct, not separate and distinct from the varicose veins.

[00:12:42] Speaker 01:
Your Honor, I'm not sure that separate and distinct is the right analysis here.

[00:12:48] Speaker 01:
It's Bard's burden to prove when Mr. Bennett suffered injury that was caused by the defect that's alleged in the complaint.

[00:12:56] Speaker 01:
And our complaint does not even mention varicose veins, and there's no evidence anywhere in the record

[00:13:05] Speaker 01:
or honestly, otherwise, that suggests that varicose veins are caused by migration, tilt, perforation, or fracture.

[00:13:14] Speaker 01:
Whether the filter's presence in his body somehow was contributing to varicose veins, again, as I stated, is a little bit unclear from the medical records, our position that that's not really related at all, despite our client as a layperson believing that.

[00:13:34] Speaker 01:
But that is not the same as what we're dealing with here, which is the defect has to cause the injury that leads to the cause of action accruing.

[00:13:52] Speaker 01:
And that is what Bard had the obligation to prove.

[00:13:55] Speaker 01:
And in most of the cases where the courts find that

[00:14:01] Speaker 01:
that there's a statute of limitations problem and then leaps to the discovery rule and does that analysis, it's really clear that injury had to have happened before a certain date.

[00:14:11] Speaker 01:
For example, in the Henderson case with the IUD, the IUD had been removed for three years before she filed the complaint.

[00:14:17] Speaker 01:
If the IUD had caused her injury, it had to have happened more than three years ago before the complaint was filed, and it had to have been before the statute of limitations.

[00:14:26] Speaker 04:
Okay.

[00:14:26] Speaker 04:
Thank you, counsel.

[00:14:28] Speaker 04:
You've answered my question.

[00:14:31] Speaker 01:
your honor do you have do you have any questions before I reserve my time

[00:14:39] Speaker 03:
more of an observation.

[00:14:42] Speaker 03:
It appears to me that opposing counsel is relying pretty heavily on the fact that your client apparently had, I don't know whether it was a podcast or some sort of article that he had come across in any event relating to the device which had been implanted in him and pointing out

[00:15:10] Speaker 03:
fairly specifically that there were issues with respect to that.

[00:15:14] Speaker 03:
And then subsequently, he had doctors visits.

[00:15:17] Speaker 03:
Now, it appears that their position is, and I could be wrong, and I'm sure I'll hear from Mr. North when he speaks, but

[00:15:30] Speaker 03:
Am I correct that they are taking the position that your client had an affirmative duty at that point to inquire further?

[00:15:41] Speaker 03:
And it looks like maybe the judge felt that way, the district court, to inquire further.

[00:15:50] Speaker 03:
Or is it that your client had to have the specific, precise knowledge

[00:15:59] Speaker 03:
at that time that there was this specific defect or the thing had twisted in his body.

[00:16:08] Speaker 03:
What is your view?

[00:16:13] Speaker 01:
I'll defer to Mr. North as to exactly what his position is on that topic.

[00:16:17] Speaker 01:
I think you may be right.

[00:16:18] Speaker 03:
Your understanding of his position, because you've come back on this in a way that would indicate to me that your position is

[00:16:27] Speaker 03:
that your client did not have the need to know precisely what the defect was for the statute of limitations.

[00:16:38] Speaker 03:
He needed to know for the statute of limitations to run and that he didn't have this affirmative duty to go forward and take further steps to make an inquiry.

[00:16:52] Speaker 01:
I understand Mr. North to be making the argument that my client had some sort of duty from the time that he was aware of this potential, this defect in the filter.

[00:17:05] Speaker 01:
And I think that argument really just misses the boat altogether because whether or not my client had a duty to investigate

[00:17:15] Speaker 01:
only comes into play if he's already been injured by the defect.

[00:17:20] Speaker 01:
Mr. Bennett was aware that there was a defect in the filter that could cause migration, tilt, perforation, or fracture.

[00:17:28] Speaker 01:
And we can discuss whether or not his investigation was reasonable, and I think that is a clear jury question if we get to that point.

[00:17:37] Speaker 01:
But I don't believe that the court needs to get to that point, because the evidence shows that we have in the record

[00:17:44] Speaker 01:
that he was not injured by that defect until much later, sometime around or immediately before July of 2023, when it became evident that there was a fracture.

[00:18:01] Speaker 01:
And certainly if there had been fracture,

[00:18:03] Speaker 01:
In March of 2021, we would have expected those records to show fracture.

[00:18:09] Speaker 01:
What the July 2023 records show is that there was no perforation at any point prior to that procedure.

[00:18:18] Speaker 01:
And so the defect had not caused him injury.

[00:18:21] Speaker 01:
It's like saying that if I know that my office chair has a defect, but it hasn't injured me, that I have a statute of limitations problem if eventually it does injure me.

[00:18:32] Speaker 01:
Maybe there are other merits issues with my claim if I knew that it had this defect and I keep using it.

[00:18:38] Speaker 01:
But that's not a statute of limitations problem.

[00:18:41] Speaker 04:
Council, sorry to interject, but I see your time has fully run.

[00:18:48] Speaker 04:
And I'll give you some two minutes on rebuttal, nonetheless.

[00:18:58] Speaker 04:
But I think we should hear from

[00:19:02] Speaker 04:
Yes, Your Honor.

[00:19:10] Speaker 02:
May it please the Court, and good morning.

[00:19:15] Speaker 02:
My name is Richard Dorff, and I am National Counsel for the defendant C.R.

[00:19:19] Speaker 02:
Bard and Bard Peripheral Vasco.

[00:19:21] Speaker 04:
Wait.

[00:19:21] Speaker 04:
Hold on one.

[00:19:22] Speaker 04:
Just one second.

[00:19:24] Speaker 04:
Sure.

[00:19:24] Speaker 04:
I see the clock has not been reset.

[00:19:29] Speaker 04:
Let's wait until the

[00:19:31] Speaker 04:
can get the clock reset so we know how much time we've got.

[00:19:37] Speaker 04:
Kelly, are you on?

[00:19:40] Speaker 04:
Now it's reset.

[00:19:42] Speaker 04:
Okay, go ahead and please proceed.

[00:19:44] Speaker 02:
Thank you, Your Honor.

[00:19:46] Speaker 02:
As I indicated, I am counsel for the defendant C.R.

[00:19:49] Speaker 02:
Bard and Bard Peripheral Vascular in litigation involving their inferior vena cava filter products.

[00:19:56] Speaker 02:
Your Honor, despite the plaintiff's characterization of what the alleg-

[00:20:00] Speaker 02:
his allegations are in this case, we believe the issue is clear.

[00:20:04] Speaker 02:
They are engaged in what I would call post hoc reinterpretation of their complaint.

[00:20:11] Speaker 02:
Yes, their complaint talks about fracture, migration, penetration, and tilt, but that is not all it talks about.

[00:20:18] Speaker 02:
And I would draw the court's attention to paragraph 69 of the complaint where they allege

[00:20:25] Speaker 02:
injury and a failure of this device based on the very injuries he sustained and knew he sustained as early as 2015.

[00:20:36] Speaker 02:
In paragraph 69, the complaint says the device subsequently failed by causing thrombosis of the filter, stenosis of the vena cava, perforating the vena cava, and not being retrievable.

[00:20:53] Speaker 02:
And importantly, it says

[00:20:56] Speaker 02:
that because those things were caused by a failure of the device.

[00:21:02] Speaker 02:
It further notes in that paragraph that the filter was noted as causing abdominal distension due to stenosis of the vena cava at the location of the filter.

[00:21:14] Speaker 02:
Why is that important your honor?

[00:21:15] Speaker 02:
Because

[00:21:16] Speaker 02:
the evidence shows the plaintiffs knew about those very conditions in 2015 and 2020, both more than three years before he filed this lawsuit.

[00:21:30] Speaker 02:
For example.

[00:21:31] Speaker 00:
Counsel, let me go to where my biggest problem is in adjudicating this case.

[00:21:42] Speaker 00:
It's clear under California law to me

[00:21:46] Speaker 00:
that if all a plaintiff suffers from some sort of defect is nominal damages, they don't have to sue just because they have nominal damages.

[00:21:58] Speaker 00:
They can wait for something else.

[00:22:01] Speaker 00:
Would you agree with that?

[00:22:03] Speaker 02:
I guess, Your Honor, I would.

[00:22:05] Speaker 00:
Okay.

[00:22:06] Speaker 00:
So here we have, from what I can see, evidence in the record in 2020 of the

[00:22:16] Speaker 00:
the very close veins problem, which at least as Planoff alleges it, is significantly different in kind and nature from the type of problems that Planoff alleges is caused by the fracture and shift.

[00:22:37] Speaker 00:
Can you point me to California law that says when is something so minimal or so different from the allegation that the statute doesn't run because there is harm?

[00:22:58] Speaker 00:
as opposed to they're so similar or from the same alleged defect that the statute does run at the earlier point.

[00:23:07] Speaker 00:
My difficulty is identifying in California law real clarity as to where that distinction is, and so I would appreciate some help on that.

[00:23:18] Speaker 02:
Your Honor, I'm not sure that I can identify or recall any cases that specifically articulate what Your Honor is saying, but I think there are some cases that are instructive on this point.

[00:23:31] Speaker 02:
The cases, and many of them, for both the California Supreme Court and the Ninth Circuit that we've cited, say you don't have to have knowledge of the specific harm

[00:23:42] Speaker 02:
that you eventually sustain, as long as you have knowledge or suspicion of some arm.

[00:23:49] Speaker 02:
And it doesn't make a distinction between nominal and more serious.

[00:23:53] Speaker 00:
But it can't be that, like, I'm sure I'm going to show my lack of scientific knowledge, that a filter like this, somebody is having pain because it's slightly misplaced.

[00:24:09] Speaker 00:
but they don't want to sue on that because the pain just isn't enough.

[00:24:14] Speaker 00:
And then later the filter, and let's say it was negligently placed one sonometer to the right of what it should have been.

[00:24:22] Speaker 00:
And then three years later it fractures causing very serious injuries.

[00:24:28] Speaker 00:
It can't be that at the former point the statute begins to run.

[00:24:33] Speaker 00:
But where, and I have seen no California case which suggests that, but where, how do you decide and why shouldn't it be a jury question as to whether it's separate and distinct enough?

[00:24:50] Speaker 02:
Well Your Honor, well first of all I believe that the injuries he sustained and that he knew he sustained before

[00:24:59] Speaker 02:
more than two years before he filed suit were beyond these sort of minor issues that the court is referencing.

[00:25:06] Speaker 02:
I will admit that Barakos-Vanes is arguably much more minor than a fracture.

[00:25:13] Speaker 02:
But in 2020, he was diagnosed with stenosis of the IVC.

[00:25:19] Speaker 02:
He was diagnosed repeatedly in 2015 with thrombus in the filter.

[00:25:25] Speaker 02:
He alleges in paragraph 69 that those were caused by the failure.

[00:25:30] Speaker 02:
And those are serious.

[00:25:31] Speaker 00:
When did the fracture occur?

[00:25:34] Speaker 02:
It was first identified four months after he filed suit.

[00:25:40] Speaker 00:
I understand that.

[00:25:42] Speaker 00:
But does the defendant contend that the fracture occurred more than two years before filing suit?

[00:25:53] Speaker 02:
There's no way of telling.

[00:25:54] Speaker 02:
that, Your Honor.

[00:25:56] Speaker 02:
We do know it wasn't discovered until after the lawsuit was filed.

[00:25:59] Speaker 02:
We don't know when it occurred.

[00:26:02] Speaker 00:
Okay, so you you do not contend that it that it should that the fracture should have been discovered with reasonable diligence more than two years before the suit was filed?

[00:26:12] Speaker 02:
No, Your Honor, not at all.

[00:26:14] Speaker 02:
But I will say that that doesn't mean he wasn't aware of other serious injuries before the two years

[00:26:22] Speaker 02:
more than two years before he filed suit.

[00:26:25] Speaker 02:
His own doctor felt that a third retrieval attempt was necessary because of the stenosis of the IVC.

[00:26:33] Speaker 02:
That's a very serious condition.

[00:26:34] Speaker 02:
That's building up of plaque and blood clots in the IVC that could prevent blood flow.

[00:26:43] Speaker 02:
He had reports of psoriasis, which, of course, escaped the filter.

[00:26:49] Speaker 03:
Excuse me, Council.

[00:26:52] Speaker 03:
That would be the whole purpose actually of the device.

[00:26:57] Speaker 03:
The device is supposed to trap blood clots and prevent those blood clots from getting into the lung.

[00:27:05] Speaker 03:
Am I not correct?

[00:27:07] Speaker 03:
Isn't that what it does?

[00:27:08] Speaker 03:
All right, so if it's doing its job and it's trapped these multiple blood clots and it's therefore become clogged, so to speak,

[00:27:24] Speaker 03:
then it would be removed, but it wouldn't be defective.

[00:27:27] Speaker 03:
It wouldn't be, you know, it would have done its job.

[00:27:31] Speaker 03:
Maybe it saved his life.

[00:27:32] Speaker 03:
No.

[00:27:33] Speaker 03:
And so I'm having a hard time with the question of why this isn't a fact issue for a jury.

[00:27:44] Speaker 03:
I mean, because he says he didn't know.

[00:27:47] Speaker 03:
And, you know, this thing is supposed to trap

[00:27:50] Speaker 03:
blood clots, it traps blood clots, it gets clogged up because it trapped all these blood clots, and they try to retrieve it and they can't retrieve it.

[00:28:00] Speaker 03:
So why is he on notice that this is a defective device?

[00:28:05] Speaker 03:
It seems to me like it in what it was supposed to be.

[00:28:09] Speaker 02:
Your Honor, I would say several things in response to that.

[00:28:12] Speaker 02:
First of all, there were experts in the multi-district litigation proceeding, and the plaintiff's attorney who was involved in that knows full well there were experts that claimed, we don't agree, that our filter was defective because it tended to attract from us.

[00:28:28] Speaker 02:
And that was an allegation of defect.

[00:28:30] Speaker 02:
That's reflected in paragraph 67.

[00:28:32] Speaker 02:
Okay, well that's not in the record here.

[00:28:38] Speaker 02:
The point being, Your Honor, that it is an alleged defect.

[00:28:42] Speaker 02:
The plaintiff's attorney alleges it to be a defect.

[00:28:46] Speaker 02:
And the court asks, why isn't this a question of fact?

[00:28:49] Speaker 02:
Under California law, and we submit Judge Fitzgerald, appropriately applied the burden shifting as occurs under California law.

[00:28:58] Speaker 02:
It was our burden to prove that the plaintiff had knowledge of some injury and of a suspicion of wrongdoing.

[00:29:08] Speaker 02:
to trigger a duty to investigate.

[00:29:11] Speaker 02:
We submit that as the district court found, we met that duty because the evidence showed that he had some of the very complications he complains of in his complaint in 2015 and 2020.

[00:29:26] Speaker 02:
It also, the record undisputed evidence shows that he had a suspicion of wrongdoing.

[00:29:32] Speaker 02:
He saw the advertisement on TV that Judge Bennett referenced.

[00:29:36] Speaker 02:
He went out and hired an attorney in 2015.

[00:29:39] Speaker 02:
Then, under California law, the burden shifts to the plaintiff to say and prove that the discovery rule applies.

[00:29:50] Speaker 02:
In other words, that he acted diligently to try to determine what caused his injury.

[00:29:57] Speaker 02:
and what those injuries were and the basis of his claims.

[00:30:01] Speaker 02:
And as Judge Fitzgerald found, we don't believe they met their burden of showing a reasonable investigation.

[00:30:07] Speaker 02:
For example, between the time there was the failed retrieval attempt in 2015, he waited four years according to the medical records before seeing anybody to do anything.

[00:30:20] Speaker 02:
In 2020, he found out he had stenosis,

[00:30:24] Speaker 02:
He found out he had distension of the abdomen, the very things he alleges were caused by a failure of the filter in paragraph 69, yet he didn't file a lawsuit for three or years.

[00:30:37] Speaker 02:
We submit that the record clearly shows that they didn't meet their burden as a matter of law.

[00:30:45] Speaker 00:
Counsel, you're familiar like your friend with the Poush's case?

[00:30:50] Speaker 02:
Yes, Your Honor.

[00:30:51] Speaker 00:
All right, so I think your friend has essentially conceded, she may disagree, that this is not a latent defect case.

[00:31:00] Speaker 00:
So if that's so, Pusha's is not directly applicable under exactly what this California Supreme Court said.

[00:31:10] Speaker 00:
But here's a line from Pusha's.

[00:31:13] Speaker 00:
We have never stated what commences the running of a statutory period in a case like this one.

[00:31:20] Speaker 00:
in which a later discovered physical injury is alleged to be separate from an earlier discovered physical injury.

[00:31:29] Speaker 00:
Now again, this is all limited to the latent defect circumstance.

[00:31:36] Speaker 00:
But is it your view that if you have this earlier discovered physical injury, let's say here the varicose veins,

[00:31:47] Speaker 00:
that that starts the statute running, even if the fracture later is a separate physical injury under California law, even if it hadn't occurred yet when the statute run, there hadn't been a fracture when the statute run.

[00:32:08] Speaker 00:
There hadn't been a fracture at the time, in your view, the statute would have run, that that claim is still barred, even if a jury could decide

[00:32:15] Speaker 00:
that it was a separate physical injury.

[00:32:19] Speaker 02:
Yes, Your Honor, I believe so.

[00:32:21] Speaker 02:
I think it's just a continuum of the injuries.

[00:32:24] Speaker 02:
The thrombus, the stenosis in particular, all of those things could have contributed to the fracture whenever it did occur.

[00:32:31] Speaker 02:
If he had been more diligent in obtaining imaging, he might have found the fracture much earlier.

[00:32:37] Speaker 02:
I submit to you, Your Honor, that what would control on that point are the legion of California cases that say you don't have to know of the exact injury.

[00:32:46] Speaker 02:
You just have to know and have a suspicion that you have some injury.

[00:32:50] Speaker 02:
And he clearly had that suspicion.

[00:32:52] Speaker 02:
As early as 2015, and certainly by 2020 when his doctors were telling him, you've got to have a third retrieval attempt because of this stenosis, because of this distension in the abdomen, because of the symptoms he now alleges were caused by a failure of the filter in paragraph 69.

[00:33:13] Speaker 02:
And yet he inexplicably waited 20 to 2013, even though he had had, I mean 2023, even though he had had a lawyer

[00:33:22] Speaker 02:
hired for eight years before he filed a lawsuit.

[00:33:25] Speaker 00:
Council, do you believe that there could be any benefit in this case from certifying any particular question to the California Supreme Court?

[00:33:38] Speaker 02:
Your Honor, that's a tough question.

[00:33:40] Speaker 02:
Under existing California law, I personally would submit that the answer is clear based on the reasonable suspicion type cases and standards I've articulated, but

[00:33:53] Speaker 02:
Whether the fracture itself constituted a discrete injury, the law is less clear on that.

[00:34:04] Speaker 02:
I will concede that.

[00:34:05] Speaker 02:
I believe it's part of the continuum of this developing injury, and all these complications really cannot be segregated.

[00:34:13] Speaker 02:
They all are sort of interdependent.

[00:34:16] Speaker 02:
and that the statute of limitations was triggered long before.

[00:34:19] Speaker 02:
And I think that's consistent with California law.

[00:34:22] Speaker 02:
But I see the court's point of if you really believe that this fracture was so discreet that it needs, the question is whether it triggers a new statute of limitations.

[00:34:33] Speaker 02:
I agree with you that the law is not particularly clear on that.

[00:34:36] Speaker 00:
Well, I appreciate the candor of your answer, Council.

[00:34:40] Speaker 02:
Thank you, Your Honor.

[00:34:41] Speaker 02:
I see my time is running out.

[00:34:43] Speaker 02:
I would just know that in conclusion that we believe the judge appropriately applied the burden of proof.

[00:34:50] Speaker 02:
He articulated it correctly.

[00:34:52] Speaker 02:
We believe that he focused correctly on the allegations in the complaint as the plaintiff having knowledge much earlier.

[00:35:01] Speaker 02:
and yet the plaintiff did nothing.

[00:35:03] Speaker 02:
And I would end by quoting the California Supreme Court in the Jolly case, which the party cited.

[00:35:09] Speaker 02:
This is a quote.

[00:35:10] Speaker 02:
So long as a suspicion exists, it is clear that the plaintiff must go find the facts.

[00:35:16] Speaker 02:
She cannot wait for the facts to find her.

[00:35:19] Speaker 02:
And on that basis, Your Honor, we would respectfully submit or request that the judgment of the District Court be affirmed.

[00:35:27] Speaker 04:
Thank you, Council.

[00:35:29] Speaker 04:
Okay, so

[00:35:30] Speaker 04:
We could have some rebuttal, but the clock can be set for two minutes rebuttal.

[00:35:41] Speaker 04:
But I can't let you go further than that.

[00:35:46] Speaker 01:
Absolutely, Your Honor, thank you.

[00:35:47] Speaker 01:
I appreciate that.

[00:35:50] Speaker 01:
I will be brief.

[00:35:51] Speaker 01:
I would like to focus primarily on my colleagues

[00:35:56] Speaker 01:
discussion of the allegations in the complaint and the injuries that were listed as alleged in the complaint.

[00:36:05] Speaker 01:
Because I think that's really important here to distinguish between what was known at the time the complaint was filed and what we know now following discovery in this case.

[00:36:15] Speaker 01:
At the time the complaint was filed, we did not know that there was a fracture.

[00:36:20] Speaker 01:
All that we knew was that the filter had been attempted, removal had been attempted, it had been grasped, there was no notation of thrombus in the filter in 2021, and it could not be removed.

[00:36:34] Speaker 01:
That led to the suspicion that was later disproven that there might have been a perforation of the vena cava at that time.

[00:36:43] Speaker 01:
And that was what led to filing the complaint.

[00:36:47] Speaker 01:
Following discovery, we now know that that suspicion was proven to be wrong, but a different malfunction of the filter causing injury was discovered during discovery, and that was the fracture.

[00:37:02] Speaker 01:
For that reason, the statute of limitations actually began to run at whatever time the fracture happened, and then the time that Mr. Bennett discovered that fracture.

[00:37:17] Speaker 01:
The alleged perforation is honestly irrelevant for purposes of the statute of limitations analysis now here on summary judgment.

[00:37:28] Speaker 01:
As Judge Ezra stated, filter was working as intended.

[00:37:35] Speaker 01:
It was not malfunctioning.

[00:37:37] Speaker 01:
It had not malfunctioned.

[00:37:39] Speaker 01:
It had not.

[00:37:39] Speaker 01:
The malfunction had not caused injury and for that reason, the statute of limitations does not bar Mr. Bennett's claim and we respectfully request that the judgment of the district court be reversed.

[00:37:52] Speaker 04:
Okay, thank you, counsel.

[00:37:55] Speaker 00:
Judge Gould, could I, would it be possible for me to ask counsel one question before this is submitted?

[00:38:02] Speaker 00:
Sure, of course.

[00:38:03] Speaker 00:
Thank you, Judge Gould.

[00:38:05] Speaker 00:
Counsel, I'm going to ask you the same question at the end that I asked your friend.

[00:38:09] Speaker 00:
Does plaintiff believe there could be any benefit from any type of certification to the California Supreme Court in this case?

[00:38:18] Speaker 01:
Your honor, if the court believes that California law is unclear regarding the statute of limitations, burdens, and what the defendant has to prove regarding when the injury accrues and what the plaintiff has to prove regarding when an injury is discovered, that is something that is not

[00:38:43] Speaker 01:
is not as clear by the California Supreme Court as it could be.

[00:38:47] Speaker 01:
We believe that the California Court of Appeals decisions describe what California courts would hold, but that is something that the California Supreme Court has not directly ruled upon.

[00:39:00] Speaker 00:
I also appreciate your candor in response to my question.

[00:39:05] Speaker 00:
Thank you.

[00:39:06] Speaker 00:
Thank you, Judgeman.

[00:39:08] Speaker 04:
Okay, thank you, Judgeman.

[00:39:10] Speaker 04:
So I'll thank both counsel for their excellent arguments and this case shall now be submitted.

[00:39:25] Speaker 02:
This court for this session stands adjourned.