Products Liability Law Daily Wrap Up, DEFENSES TO LIABILITY—MEDICAL DEVICES—D. Ariz.: Patient partly wins bid to strike affirmative defenses in Bard catheter infection case, (Mar 10, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

Genuine issues existed as to the existence of a superseding cause and the foreseeability of improper handling of the device by caregivers, which barred summary judgment on those issues.

In a bellwether action brought against several medical device suppliers by a man who sustained post-implantation injuries due to the device’s alleged defects, the federal district court in Arizona granted in part and denied in part the patient’s motion for partial summary judgment on several affirmative defenses. The motion was granted on the contributory fault and apportionment defense with respect to the implanting physician, the treating hospital, and the patient due to lack of evidence of any “negligence or reckless conduct” on their part, but was denied as to the caregivers’ alleged mishandling of the device (In re Bard Implanted Port Catheter Products Liability Litigation, Cook v. Becton Dickinson & Co., No. CV-23-01975-PHX-DGC (D. Ariz. Mar. 3, 2026)).

Background. In August 2022, a man received a Bard PowerPort IPC with a ChronoFlex catheter at the Mayo Clinic in Rochester, Minnesota. The device was implanted by an interventional radiologist and was accessed by medical staff the following day to facilitate chemotherapy treatment. Two days later, the port was de-accessed at the patient’s home by a caregiver. The patient subsequently developed a bloodstream infection and was diagnosed with sepsis. He brought suit against the device’s designers, manufacturers, and marketers—Becton Dickenson and Company, C. R. Bard, Inc., Bard Access Systems, Inc., and Bard Peripheral Vascular, Inc. (collectively, Bard or suppliers)—alleging that the PowerPort was defectively designed because the catheter was made of a hydrophobic material (polyurethane) susceptible to infection and lacked an antimicrobial coating. He also alleged that Bard concealed infection risks, failed to warn users adequately, and made negligent and fraudulent misrepresentations regarding the device’s safety. His case became one of the bellwether cases in a multidistrict litigation involving thousands of personal injury claims alleging that Bard’s implanted port catheters (IPCs) were defective and caused serious complications including infection, thrombosis, catheter fracture, migration, and perforation. The suppliers asserted several affirmative defenses. The patient moved for summary judgment on three categories of defenses: intervening and superseding cause, contributory fault and apportionment, and statute of limitations and repose.

Legal standard. Under Minnesota law, an intervening cause does not relieve a defendant of liability if the intervening event was a foreseeable consequence of the original negligence. Glay v. R.C. of St. Cloud, Inc., 30 N.W.3d 639, 654 (Minn. 2026). An intervening act becomes a superseding cause only if four conditions are satisfied: the harmful effects occurred after the original negligence, the intervening act was not caused by the original negligence, the act produced a result that otherwise would not have occurred, and the act was not reasonably foreseeable to the original wrongdoer. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).

Intervening cause. The suppliers claimed that the infection resulted from improper handling of the port during the at-home de-access procedure rather than from any design defect, amounting to an intervening and superseding cause. The patient argued that risk of infection arising from de-accessing the port was foreseeable since Bard’s own experts acknowledged that port devices carry an inherent risk of infection, that contamination during de-access is a known route of infection, that contamination may occur even when de-accessing is performed by trained professionals or when protective measures are taken, and that the PowerPort’s instructions for use also warned about the risks of infections. The court concluded that the patient framed the foreseeability inquiry too broadly. The suppliers were not asserting that infection generally constitutes a superseding cause. Rather, they argued that specific missteps during the de-access procedure—performed by the patient’s spouse or friend—caused contamination. The relevant question therefore was whether those alleged missteps were foreseeable. The patient argued that Bard knew patients and caregivers sometimes perform de-access procedures, whereas Bard countered that its patient guide indicated that caregivers should perform such procedures only after receiving training and that it had no reason to expect that untrained individuals would perform the procedure improperly. To defeat the superseding cause defense at the summary judgment stage, the patient was required to show that the “unreasonable risk of harm attributable to” his caregiver’s missteps was foreseeable to the suppliers, Rieger v. Zackoski, 321 N.W.2d 16, 21 (Minn. 1982), but failed to do so. A jury would thus determine the issue of foreseeability and existence of a superseding cause.

Contributory fault. The suppliers sought to reduce or eliminate their potential liability for damages by attributing comparative fault to other individuals under Minnesota’s comparative fault statute, which permits apportionment of damages to any person whose negligent or reckless conduct contributed to the injury. Minn. Stat. §§604.01–604.02. The patient argued that the suppliers had no evidence supporting fault by the Mayo Clinic, the implanting physician, the patient himself, or the caregivers who performed the de-access procedure. With respect to the Mayo Clinic and the implanting physician, the suppliers relied on testimony from the patient’s infectious disease expert suggesting the infection may have occurred during implantation based on timing. However, that expert identified no specific negligent act by the physician or the clinic. As there was no proof of “negligent or reckless conduct” on their part, the patient’s motion was granted as to these parties. The court also rejected Bard’s argument that the issue of apportionment must await trial. Under Celotex Corp. v. Catrett, 477 U.S. 322, 323 (1986), a party bearing the burden of proof on an affirmative defense must produce evidence supporting that defense at the summary judgment stage. The suppliers presented no evidence that the patient himself contributed to the infection apart from stating that they did not presently intend to attribute fault to him. The court therefore granted summary judgment eliminating comparative fault as to the patient.

Caregiver conduct. Next, Bard presented expert testimony from an oncology nurse who identified several deviations from recommended practice during the at-home de-access procedure, including failing to clean the work surface, improperly wiping the connection hub instead of scrubbing it for the recommended duration, wiping syringe tips, and failing to use a pulsatile flushing technique. Although the patient relied on testimony from an infectious disease expert stating that the infection resulted from inadvertent contamination and that no one was negligent, the court explained that credibility determinations cannot be made at the summary judgment stage. If the jury accepted the suppliers’ expert testimony instead, it could conclude that the caregivers failed to exercise ordinary prudence under the circumstances. Summary judgment was thus denied due to this triable issue about the caregivers’ negligence. Finally, the patient’s motion was denied as moot with respect to the statute of limitations and repose defenses because Bard confirmed that it was not asserting those defenses in this matter.

The case is No. CV-23-01975-PHX-DGC.

Judge: Campbell, D.

Attorneys: Gabriel Assaad (McDonald Worley PC) and Megan Odom (Ciresi Conlin LLP) for Robert Michael Cook a/k/a Robert Cook. Marina Corodemus (Corodemus & Corodemus LLC) for Marina Corodemus. Kimberly Lynn Boldt (Ratzan, Weissman & Boldt) for Lori Prentice. Adam J. Hegler (Nelson Mullins Riley & Scarborough LLP) and Allyson E. Emley (McCarter & English LLP) for Becton Dickinson and Co., C.R. Bard Inc., Bard Access Systems Inc. and Bard Peripheral Vascular Inc.

Companies: Becton Dickinson and Co.; C.R. Bard Inc.; Bard Access Systems Inc.; Bard Peripheral Vascular Inc.

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