Parties Disagree About Timing of IVC Filter Bellwether Trial Schedule in Cook MDL

With a small group of Cook IVC filter lawsuits selected for a series of three bellwether trials, which are set to begin in October 2017, the parties involved in the litigation disagree about the schedule for preparing these cases, and what should happen if the first case selected does not go forward as scheduled.

There are currently more than 900 product liability lawsuits pending throughout the federal court system against Cook Medical, each involving similar allegations that individuals experienced complications from Cook Celect or Cook Gunther Tulip IVC filters, which are retrievable devices implanted into the vena cava to prevent blood clots from traveling to the lungs and causing a pulmonary embolism. Each claim involves allegations that the devices migrated out of position, puncture internal organs, fractured or caused other problems due to design problems.

Given the similar questions of fact and law raised in the litigation, cases filed in U.S. District Courts throughout the country have been consolidated for pretrial proceedings as part of an MDL, or multidistrict litigation. The lawsuits are centralized before U.S. District Judge Richard L. Young in the Southern District of Indiana to reduce duplicative discovery, avoid conflicting rulings from different courts and to serve the convenience of the parties, witnesses and the judicial system.

In July, the Court selected three representative claims to serve as “bellwether” cases, which will each go to trial to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation. While the outcome of these cases will not be binding on other lawsuits, it could help facilitate eventual IVC filter settlement agreements with Cook and avoid the need for hundreds of individual trial dates nationwide.

A case filed by Elizabeth Jane Hill has been selected as the first case that will go before a jury, with trial scheduled to begin in October 2017 and various discovery deadlines established. However, the parties have been unable to reach an agreement regarding deadlines for the other two cases, and what should happen if the Hill case does not go forward as scheduled.

According to a proposed case management order (PDF) submitted by plaintiffs, all three cases would be prepared for trial on the same schedule, with case specific discovery complete by April 20, 2017 and expert discovery complete by May 19, 2017. Following pretrial motions for summary judgment and challenges to the admissibility of expert testimony, the proposed trial date for the first bellwether would be October 2, 2017, regardless of whether it is the Hill case or one of the other cases being prepared.

A separate proposed bellwether trial plan (PDF) submitted by Cook Medical calls for staggered deadlines and trial dates.

A status conference was held on September 8, at which time the Court expressed concerns about setting aside substantial time for the Hill trial without making sure that something else in the MDL will fill that time slot if the case does not proceed. However, the manufacturer indicates that requiring all cases to be ready to proceed on the first scheduled date “rewards” Plaintiffs, allowing them to manipulate the process through selectively timed dismissals to ensure that the plaintiffs’ “best” case goes to trial first.

“During the hearing, this Court agreed that the parties should work to ensure each of the bellwether trials would be ready to go in October 2017… Plaintiffs believe the issue has been resolved and have already tendered a proposed [case management order] consistent with the Court’s statements,” wrote plaintiffs leadership attorneys in their filing submitted September 23. “Cook has now tendered a six-page brief (with more than seventy pages of attachments) re-arguing this issue.”

Plaintiffs have repeatedly stated that they have no intention of dismissing the Hill case before trial, but Cook has proposed a 20 week interval between the first and second bellwether trials.

In addition to cases pending against Cook Medical, a large number of similar Bard IVC filter lawsuits are pending in a separate MDL, which has been centralized before U.S. District Judge David G. Campbell in Arizona for cases involving products manufactured by C.R. Bard. Another series of early bellwether trials are expected in that litigation as well over the next year.

If settlements are not reached following the bellwether process, each case pending against the two manufacturers may be remanded back to the U.S. District Court where it was originally filed for a separate trial schedule.