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With a growing number of IVC blood clot filter lawsuits continuing to be filed in courts throughout the U.S., groups of cases against Cook Medical and C.R. Bard will soon be selected as “bellwether” claims, which will be prepared for early trial dates to help gauge how juries are likely to respond to certain evidence and testimony that may be repeated throughout the litigation.
Inferior vena cava (IVC) filters are small, spider-like devices implanted to “catch” blood clots that may break free in the body and travel to the lungs. They are often implanted among individuals at risk of pulmonary embolism, and many filters introduced in recent years were designed to be removed after the risk of a blood clot passed. However, thousands of complications from IVC filters have plagued the retrievable designs, where the struts may puncture the vena cava or travel to other parts of the body.
Throughout the federal court system, there are currently about 700 product liability lawsuits pending against Cook and Bard over problems with certain versions of their blood clot filters. In addition, as IVC filter injury lawyers continue to review and file cases, it is ultimately expected that several thousand complaints may be filed by individuals nationwide.
Status of IVC Filter Litigation
Two separate federal multidistrict litigations (MDLs) have been established, with cases involving Bard IVC filters centralized before U.S. District Judge David G. Campbell in the District of Arizona, and cases involving Cook IVC filters pending before U.S. District Judge Richard L. Young in the Southern District of Indiana.
The consolidated pretrial proceedings are designed to reduce duplicative discovery in similar cases pending against the medical device manufacturers, avoid conflicting pretrial rulings and to serve the convenience of the parties, witnesses and the courts.
In late 2015, Judge Young established a “bellwether” program for the Cook IVC filter lawsuits, where a group of 10 cases were selected to be part of an initial discovery pool, including five selected by each side. The Court was then expected to designate three of those cases to go before federal juries to help the parties weigh the relative strengths and weaknesses of their cases.
Since the litigation has ballooned from about 75 cases at the time the process was established, to close to 350 today, Judge Young has indicated that a larger pool of cases will be selected, which are more representative of the growing litigation.
In a court order (PDF) issued on April 15, each party was directed to select 10 cases each by April 29, increasing the pool to 20 potential trial cases. Judge Young indicated that parties could select some of their initial picks for the new pool, but warned against the selection of “outlier” cases.
After the parties exchange their lists, the sides will alternately strike cases from the list until they are left with 14 for the new discovery pool by May 13. Each side will then nominate three trial cases, and the court will select three of those six cases for the first bellwether trials.
In the separate MDL established for all Bard IVC filter lawsuits, a bellwether plan has not yet been finalized. However, earlier this month Judge Campbell directed the parties to submit a stipulated plan regarding selection of bellwether cases involving Bard IVC filters by April 15.
In a joint submission (PDF) filed late last week, the parties proposed a plan where plaintiffs and defendants will each submit a list of 24 representative Bard blood clot filter cases by June 29. To be eligible for this pool, the lawsuit had to be filed by April 1.
In early December 2016, each side will then select 10 cases from the initial pool, with four cases selected by each party designated for automatic inclusion in the final bellwether pool. The parties will then meet and attempt to identify an additional four cases to be included in a pool of 12 total cases that will be eligible for the first trial dates. Following discovery, in early 2017, a group of six cases from this pool will be selected for a series bellwether trials.
In complex product liability litigation, where a large number of claims have been filed by individuals who suffered injuries from similar medical devices, it is common for bellwether trials to be scheduled. While the outcomes of these bellwether trials will not be binding on other cases in the litigations, they will be closely watched by lawyers involved in the lawsuits, and they may influence eventual negotiations to reach IVC blood clot filter settlements and avoid the need for hundreds of individual trials to be scheduled in courts throughout the U.S.