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All federally filed Cook IVC filter lawsuits were consolidated into one court in the Southern District of Indiana in October 2014. District Judge Richard L. Young is overseeing the proceedings.

Now, according to a recent court filing, both the defendants and the plaintiffs have submitted a list of cases that are to be considered for early bellwether trials. There are currently about 400 cases pending in the court, and from these, the parties have made their choices of which are best suited to represent the rest. When they go to trial, the final bellwethers are expected to help determine how juries will react to the evidence, and to potentially facilitate future settlement negotiations.

The parties do not agree with each other on the selections, however.

Plaintiffs Say Defendants are Choosing Cases That Do Not Represent the Whole

Each side put forth 7 cases that it believes best represent the claims and arguments that would be presented over the course of the entire litigation. The plaintiffs, however, don’t believe that the cases chosen by the defendants are representative of most of the Cook IVC filter lawsuits filed in the MDL.

Two of them, for instance, involve claims about Gunther Tulip filters, if the majority of the cases concern Celect filters. The plaintiffs further state that if there is to be a representative case on the Gunther Tulip filter, then a different case should be chosen instead (they recommend one).

They also note that two of the cases selected involve recurrent deep vein thrombosis (DVT), which again, isn’t representative of a complication present in a significant number of cases. Though DVT may be caused by an IVC filter, it isn’t as common as some of the other conditions.

Two other cases involve plaintiffs with pre-existing clotting disorders, which confuses the issue as to any injuries caused by the IVC filters. Another case involves a plaintiff who had a filter that perforated the vena cava (main vein traveling from the legs back to the heart and lungs), but the filter was successfully removed.

For that case, the plaintiffs claim “it does not appear that she has any signature injury with any major sequellae from signature injury.” They go on to state that it appears as if the defendants chose these cases because the plaintiffs either didn’t suffer from significant injuries or had pre-existing conditions unrelated to any filter failure.

The plaintiffs remind the court in their statement that the parties were to select cases that represented the MDL as a whole, “primarily alleging injuries from the Celect IVC filter due to migration, IVC perforation, and an inability to be removed.” They go on to recommend what they believe are more representative cases.

Defendants Disagree on Bellwether Cases

The defendants, however, believe differently. In their list of suggested cases, they criticized the plaintiffs for failing to choose a case that involv the Gunther Tulip IVC filter (the plaintiffs later did so), and for over-emphasizing device fracture and removal claims.

They state that it’s the plaintiffs’ cases, not the defendants’, that aren’t representative of the MDL as a whole. They use as evidence the fact that 57 percent of their suggestions allege fracture and 71 percent allege open removal, while only 25 percent of the cases in the MDL allege fracture and only 18 percent allege open removal.

The Defendants say that their cases more closely track the current make-up of the MDL. Their selection of two Gunther Tulip cases (29 percent) and five Celect cases (71 percent) “is nearly identical to the make-up of the MDL.”

They make further suggestions for which cases should be removed and which added, and end up suggesting a final three to go to trial starting in spring 2017.

The next status conference is scheduled to take place on June 27-28, 2016.

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