Cook Vena Cava Filter Lawsuits To Proceed Toward Trial Without Bifurcation of Punitive Damages

The Court presiding over all federal Cook vena cava filter lawsuits has refused to split the compensatory and punitive damages phases during discovery and bellwether trials, indicating that the medical device manufacture failed to provide sufficient reason as to why the cases should be bifurcated.

There are currently about 200 product liability cases pending against Cook Medical over complications with inferior vena cava (IVC) filters implanted to prevent blood clots from traveling to the lungs and causing a pulmonary embolism.

The litigation has been centralized before U.S. District Judge Richard L. Young in the Southern District of Indiana for coordinated discovery and a series of early trials, which are designed to help the parties gauge the strengths and weaknesses of their positions.

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As part of the coordinated pretrial proceedings, a small group of claims are going through case-specific discovery as part of a bellwether pool, from which four cases are to be selected for a series of trials that will go before juries after September 15, 2016. While the outcomes of these early trial dates will not be binding on other claims, they may influence eventual negotiations to reach vena cava filter settlements that could resolve large numbers of claims.

In August, Cook Medical asked the Court to bifurcate the issue of punitive damages both during discovery and trial, separating the issue of whether additional damages should be awarded that are designed to punish the medical device manufacturer for its design and marketing of the IVC filters.

Cook asked that examination of issues relevant only to the question of punitive damages be delayed until after a determination is made about any compensatory damages, which are designed to compensate individuals for injuries they may have suffered.

Each of the complaints involved in the litigation raise nearly identical allegations, with plaintiffs claiming that they suffered injuries when the small filters moved out of position, punctured the vena cava or fractured, often causing small metal pieces to travel to the heart or lungs.

In a court order (PDF) issued October 30, U.S. Magistrate Judge Tim A. Baker explained the reasons the Court is rejecting Cook Medical’s attempt to prevent discovery at this time of information relevant to the company’s revenues, profit margins, net worth, employee pay or other financial information, which the manufacturer had argued is only relevant to calculating a monetary award of punitive damages.

“Defendants’ request to postpone discovery of its financial information is not well taken because Defendants failed to identify with specificity the discovery material they wish to protect,” Judge Baker ruled. “Indeed, the lack of specificity makes it difficult for the Court to understand exactly what discovery Defendants want to protect, which in turn could complicate the scope of bifurcated discovery and generate avoidable discovery disputes. Moreover, discovery bifurcation could prejudice Plaintiffs’ ability to respond to a motion for summary judgment.”

Judge Baker also shot down an argument that the bellwether trials should be bifurcated into two stages, indicating that the manufacturer’s liability for punitive damages and its financial information are so closely intertwined that they could not be separated without prejudicing Plaintiffs.

“It is apparent to the Court that Plaintiffs need Defendants’ financial information to argue that Defendants are liable for punitive damages. The jury will likewise need Defendants’ financial information when examining Defendants’ potential liability for punitive damages. There is no presumption in favor of bifurcation and Defendants have not carried their burden. Consequently, the Court denies Defendants’ request to bifurcate discovery and trial,” Judge Baker wrote in the order.

This week, plaintiffs are expected to submit a statement of special damages and to make a settlement demand in all ten cases that are part of the initial Discovery Pool. Cook Medical will then have sixty days to respond. If the cases do not settle, it is expected that the parties will make presentations to the Court in mid-March 2016 about which Discovery Pool cases should be selected for the series of four bellwether trials that will begin at the end of next year.

The Cook Medical vena cava filter litigation continues to move forward as a growing number of similar Bard Recovery filter lawsuits and Bard G2 filter lawsuits are being organized as part of a separate federal multidistrict litigation (MDL), which was centralized in September 2015 before U.S. District Judge David G. Cambell in the District of Arizona.

Those complaints raise nearly identical allegations of similar problems linked to retrievable vena cava filters manufactured and sold by C.R. Bard. It is ultimately expected that a similar bellwether program will be established in the Bard MDL.


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