Bellwether trials are expected to begin for Cook IVC filters in Spring of 2017, but the parties are still arguing over which cases will go forward.  How these cases go will likely determine the settlement value for the hundreds of Cook IVC filter cases that have been filed.  District Judge Richard L. Young has set the criteria for the Cook IVC filter bellwether trials; both the plaintiffs and the defendants were instructed to submit seven cases.  The sides disagree, however, on whether the cases the other side has submitted meet the Judge’s criteria.

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 pre-existing 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.

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