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MDL Judge Denies Cook’s Request to Delay Discovery

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The Cook IVC filter MDL was established in October 2014 in the Southern District of Indiana. Both sides have been busy since then with pre-trial proceedings, in preparation for bellwether trials, which are expected to begin toward the end of 2016.

In August 2015, Cook filed a motion with the Court requesting the separation of the litigation into two phases: one addressing compensatory damages, and the other addressing punitive damages. The plaintiffs objected to the request.

In an order signed October 30, 2015, the Court denied the Defendants’ request.

Cook Wanted to Keep Financial Information Private

Both parties are now in the process of selecting cases that will go into a “discovery pool.” From this pool, four cases will be chosen to go to trial, and will serve as “bellwether trials.” These are early trials that are expected to help determine how juries will react to the evidence. They may also facilitate settlement negotiations between the parties.

Cook wants the issue of punitive damages, which are designed to punish a company for wrongdoing, to be delayed until after juries determine what plaintiffs deserve in compensatory damages. The company stated that such a delay would promote efficiency and avoid “unnecessary prejudice against Cook defendants,” allowing the parties to focus solely on compensatory damages “without being improperly influenced by evidence concerning Cook revenues, product margins, net worth, employee pay, or other potentially inflammatory financial information.”

They added that since Cook defendants are privately held companies, staying the discovery of financials until later would protect them from the “intrusive (and likely unnecessary) disclosure of extremely sensitive, non-public information.”

Court Disagrees and Allows Punitive Damages Claims to Move Forward

In its October 30th order, the U.S. District Court for the Southern District of Indiana and coordinating Judge Tim Baker denied the Defendants’ motion. They noted that many of the plaintiffs were seeking punitive damages, alleging that Cook failed to warn about the potentially dangerous side effects associated with the IVC filter devices, and put public safety at risk.

Baker acknowledged that courts have occasionally bifurcated discovery related to punitive damages because of the sensitivity of financial information and to protect a party from embarrassment or undue burden or expense. But he went on to state that in this case, the defendants failed to identify the specific material they wanted to protect, and instead asked for broad protection of information that the plaintiffs argued was “closely intertwined with issues of liability.”

Indeed, it was the lack of specificity that worked against Cook, as the court stated that not knowing what Cook wanted to conceal could complicate discovery and generate discovery disputes. Some of the plaintiffs’ punitive damage claims are based on the allegation that Cook profited from the plaintiffs’ injuries, which means that discovery of the financial information could be critical to some of the cases surviving summary judgment.

In the end, the Court stated that the Defendants had failed to establish good cause to support their motion to bifurcate discovery, and the request was denied.

Cook IVC Filters Linked with Risk of Perforation

Cook IVC filters are medical devices implanted in the inferior vena cava—the vein that carries blood from the legs back to the lungs and heart. It is designed to trap blood clots and dissipate them before they can travel onto the lungs and cause a pulmonary embolism.

Nonetheless, the devices have been linked with a high risk for fracture and other problems. They can perforate the inferior vena cava, or may break and migrate to other areas of the body.