Tuesday, September 8, 2026
Page 3
Dissenter: Panel Reaches Result Contrary to 2025 Decision
Tung Notes That Ninth Circuit Majority Reverses Summary by District Court Judge Fitzgerald While, on Parallel Facts Last Year, Same Judge, in Action Against Identical Defendants, Was Reversed
By a MetNews Staff Writer
Ninth U.S. Circuit Court of Appeals Judge Eric Sung, in a dissent filed on Friday, pointed to the irony of the majority finding that a medical malpractice action, founded on products liability, is time-barred, as a matter of California law, where last year, a different panel reversed a summary judgment for defendant on virtually identical facts.
“What a difference a panel composition can make,” he remarked.
Comprising Friday’s majority in affirming summary judgment for defendants C.R. Bard. Inc. and Bard Peripheral Vascular, Inc. were Circuit Judges Danielle J. Forrest and Michelle T. Friedland. They affirmed a decision by District Court Judge Michael W. Fitzgerald of the Central District of California.
The defendants were makers of a medical device, an inferior vena cava filter, that was inserted in plaintiff Alia Esperias. She sued based on injuries allegedly caused by the filter.
In light of California’s two-year statute of limitation relating to medical malpractice lawsuits, the majority held, Esperias’s action is barred. The clock begins ticking on such actions, they noted, when the plaintiff discovers, or has reason to discover, that a cause of action exists, and Esperias was told by a doctor in 2020 that the device had been malpositioned.
Her suit was brought in 2023.
Earlier Decision
Rendering a decision on April 17, 2025, in a case with a parallel fact situation, were Circuit Judges Mark J. Bennett and Ronald M. Gould, joined by David A. Ezra, a District Court judge for the District of Hawaii, sitting by designation. There, a summary judgment awarded by Fitzgerald in favor of C.R. Bard. Inc. and Bard Peripheral Vascular, Inc. was reversed.
Plaintiff Craig Bennett had inserted in him the same sort of filter placed in Esperias. The panel there held that although Bennett knew as early as 2015 that problems with the device had been ascertained, his action, brought in 2021, might be timely, reasoning:
“[A] reasonable jury could conclude that the presence of several symptoms prior to March 2021 that Bard had warned were ‘potential complications’ of using the Filter does not necessarily indicate that the Filter had malfunctioned due to a design defect.”
Tung’s Dissent
Tung wrote that “Ms. Esperias appears to have more sympathetic facts” than those in Bennett’s case, “yet today we bar her from proceeding as a matter of law, while allowing Mr. Bennett to prove his case before a jury.” He remarked:
“I do not quibble with the majority’s articulation of the legal standard: When a party suspects wrongdoing by the company—whether he suspects the wrongdoing violated some law or not—the party would be on notice, triggering the statute of limitations. The question here is whether Ms. Esperias should be deemed, as a matter of law. to have been on notice before her statute of limitations ran.
“Just like our earlier decision in Bennett, the answer should have been no.”
He opined:
“[A] jury could conclude that Ms. Esperias was given reassurance from a specialist that she needn’t worry about the mispositioning of the filter and that there was no wrongdoing. At least, the issue seems close enough, such that we should not have decided the case against Ms. Esperias summarily.”
The dissenter added:
“Of course, the majority is not bound by Bennett, since the case was not published. But Bennett was correctly decided, and following it here would have avoided the starkly disparate treatment we now give to two different plaintiffs in nearly identical circumstances.”
The case is Esperias v. C.R. Bard, 25-2701.
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