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Second Cook IVC Filter Lawsuit Selected for Bellwether Trial in MDL

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The U.S. District Judge presiding over all Cook IVC filter lawsuits has identified the second bellwether case that will go to trial in the federal MDL, selecting a claim brought by an Illinois man who had a Cook Gunther Tulip filter implanted.

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 of the claims raise similar allegations, indicating that Cook Medical sold an unreasonably dangerous and defective IVC filter, which is prone to migrate out of position, puncture internal organs, fracture or caused other severe and potentially life-threatening risks.

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, Judge Young 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.

Last month, the court indicated that a case filed by Elizabeth Jane Hill will be the first to go before a jury, involving a Cook Celect IVC filter. The trial is scheduled to begin in October 2017.

In an order (PDF) issued October 17, Judge Young identified a lawsuit filed by Arthur Gage, of Illinois, as the second bellwether trial, but a specific date for that trial has not yet been scheduled.

Gage filed his lawsuit in November 2014, indicating that he received the Gunther Tulip IVC filter in April 2011. According to the lawsuit, he began experiencing extreme chest pain and shortness of breath immediately after receiving the implant. He was told that the device had perforated his vena cava and could not be removed due to the high risk of death during the procedure.

Plaintiffs objected to the selection of the Gage case as the second bellwether trial, arguing that both Hill and Gage were originally cases selected for the discovery pool by the manufacturer, suggesting that they involve fact patterns that may favor the manufacturer. However, Judge Young dismissed those concerns.

“The purpose of selecting bellwether cases for trial is to enhance the settlement prospects of the hundreds of other pending cases involving the Celect and Gunther Tulip filters,” he wrote. “To further this end, the court must choose cases that are the most representative of the types of cases at issue in this MDL. Therefore, the court does not consider Hill and gage to be defense ‘picks’, rather, the court considers them solely as bellwethers.”

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 manufacturers may be remanded back to the U.S. District Court where it was originally filed for a separate trial schedule.

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