IVC Litigation Update

There are now more than 8,000 IVC filter lawsuits pending in two federal courts.  The lawsuits all claim that the manufacturers of various IVC filters were both negligent in the design and manufacturing of the filters as well as failed to warn patients of the dangers of IVC filters. The largest two manufacturers of IVC filters are C.R. Bard Inc. and Cook Medical.  There are also two smaller manufacturers named Cordis Inc. and Argon/Rex Medical Inc.

All of the cases against Bard and Cook Medical have now been centralized in what is called a multidistrict litigation (MDL) before Judge Young in Indianapolis, Indiana (Cook IVC MDL) and Judge Campbell in Phoenix, Arizona (Bard IVC MDL).  The Cordis cases are filed in state court in California and the cases against Argon/Rex Medical are filed in state court in Philadelphia.

A bellwether trial is a case that the court and the parties select to test their arguments, with the goal of moving the overall litigation towards resolution.  Bellwether cases generally have facts that are typical and representative of other cases in the wider litigation, and the outcome of a bellwether trial often informs the parties on whether they will continue to litigate or settle their claims.  The court selects a bellwether case from a pool of cases that each side proposes. If these bellwether trials result in verdicts for the plaintiffs, they may set the stage for potential settlement discussions, but there is no guarantee this will occur.  If the bellwether trials result in verdicts in favor of the defendant, the defendants usually argue that the cases are not as valuable as an individual plaintiff may have previously thought.

On March 30, 2018, the first bellwether trial involving an IVC filter was tried before a jury in Phoenix, Arizona.  The Phoenix jury awarded $3.6 million in damages to the plaintiff in the first C. R. Bard IVC bellwether trial (the case was Booker v. Bard).  The second Bard bellwether trial took place a few weeks later, and on June 1, 2018, a jury ruled in Bard’s favor. Finally, Bard was granted summary judgement in the third bellwether trial because the judge determined the statute of limitations had expired on the plaintiff’s claim (i.e., they waited too long to file their lawsuit after suffering an injury and the case was dismissed in favor of Bard).

In the Cook MDL, the first and second bellwether trials were dismissed because the judge ruled the plaintiff had waited too long after surgery to file suit.  A third bellwether trial against Cook goes to trial in January 2019.  In March 2018, a separate lawsuit against Cook that was filed in state court in Texas returned a $1.2 million dollar verdict against Cook which is now being appealed.  In short, Cook has been fairly successful at getting the bellwether cases dismissed before trial but will likely need to try a few more cases in the federal MDL before any talks of a settlement are likely.

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