The purpose of bellwether trials is to determine how future juries might
respond to the evidence found in this case. The cases selected are to represent
the lawsuit as a whole. These initial trials may then help in the negotiations of
future settlements. Currently, there are over 400 cases pending in court for the
Cook IVC Filter MDL. The two sets of cases chosen by opposing counsels
contain very different characteristics, which contributes to the current
disagreements.
In October, 2015, all federally filed Cook IVC filter lawsuits were consolidated
into one court in the Southern District of Indiana for pretrial proceedings. The
lawsuits allege that Cook IVC filters are dangerous and defective, in that they
move around (migrate) and poke holes (perforate) internal organs. This can
cause catastrophic injury or even death. Additionally, some recipients of Cook
IVC filters cannot have them removed due to their defective design, despite
FDA recommendations that IVC filters be removed as soon as possible.
The plaintiffs argue that the defendant’s chosen cases do not represent the
cases as a whole. For example, two out of the seven cases submitted by
defense involve the Gunther Tulip Filter, while a majority of the cases that have
been filed are regarding the Celect filters. Plaintiffs have complained that if the
cases were truly representative of all the other cases in this multidistrict
litigation (MDL), they should have chosen at least one different case that
pertains to the more common filter found in the lawsuit.
For two other cases, the defendants chose cases which involve recurrent deep
vein thrombosis (DVT), which also was not a common complication found in
the MDL. While the IVC Filter does cause DVT, that particular condition is not
found in the majority of filed cases. Two cases involve plaintiffs with preexisting clotting disorders, which complicates the injuries that came directly as
a result of the filter. Another case submitted involves a filter which perforated
the vena cava, the main vein running from the legs to the heart and lungs.
However, in this particular case, the filter was able to be removed successfully.
Plaintiffs argue that the case does not represent the signature injury found in
the MDL. The plaintiffs believe the most representative cases involve “injuries
from the Celect IVC filter due to migration, IVC perforation, and an inability to
be removed.”
The defendants disagree with the plaintiffs’ allegation and believe that it is in
fact their selected cases that are more representative of the Cook IVC Filter
lawsuit than the cases selected by opposing counsel. The plaintiffs originally
did not select a case which involves the Gunther Tulip IVC filter. Later after
disagreement, the parties agreed to submit one as a bellwether case. The
defendants further argue that they “over-emphasiz[ed] device fractures and
removal claims.” The defendants rely on statistics which they argue show that
57% of the plaintiffs’ case submissions claim fracture and 71% claim open
removal. The cases in MDL paint a different story though, with only 25%
claiming fracture and 18% claiming open removal. In addition, of the almost
400 cases in the MDL, 29% involve Gunther Tulip IVC filters while only 71%
involve Celect IVC filters, which makes the defendants’ choices of
representative cases more correct than the plaintiffs’ choices.
The trials for the IVC filters will begin in the Spring of 2017. Once these
bellwether trials conclude, cases may start settling quickly. Consequently, if
you or a loved one has been injured using a Cook IVC Filter, you should act
quickly to contact a lawyer before time runs out. Contact Keane Law LLC today
for a free consultation.