Cook IVC Filter: “Bellwether” Cases Selected for 2017 Trials

A “bellwether” is someone or something that leads others or shows what will happen in the future or is an indicator of trends. In the legal world a bellwether case is very important because it leads the way in how a large number of lawsuits may be litigated or settled.

Too Many Cases, Not Enough Resources

If there are many plaintiffs suing the same defendant for the same reason with similar facts there are different ways all these cases could be handled. They could,

• Go their own separate ways with their own trials,
• Become a class action in which the interests of all the plaintiffs are represented by one plaintiff, or a group or them, or
• Establish a multi-district litigation (MDL) which has advantages of the options above. Cases from all over the country are transferred to a designated court and grouped together. Instead of just one trial in a class action there could be multiple, independent trials with the first ones called bellwether cases.

MDL bellwether cases allow attorneys for the plaintiffs and defendants to work together on preliminary litigation issues and prepare for representative cases that have similarities to many other (untried) cases. Bellwether cases also lessen the chance of inconsistent rulings and verdicts across the country.

The vast majority of civil cases settle before a trial takes place. What should a case settle for? Bellwether trials help the parties understand what value the cases have that are part of the MDL.

• If juries reject the plaintiffs’ claims and find no negligence, they’re not worth much.
• If the plaintiffs are successful and receive verdicts with large money awards, they’re worth a lot.

With the bellwether cases under their belts attorneys and their clients remaining in MDL get a better idea of the challenges they face and have more realistic expectations for settling cases. In an MDL, case after case could go to trial until they all receive verdicts (which could take years or even decades) or they could settle.

Cook IVC MDL

Currently there is an MDL for about 650 plaintiffs from all over the country injured by Cook IVC filters in the federal court for the Southern District of Indiana. In July 2016, U.S. District Judge Richard Young issued an order selecting three bellwether cases for trial. He also identified the specific type of Cook IVC filter that caused the plaintiffs’ injuries,

• Brand v. Cook Medical, Inc. et al., Case No. 1:14-cv-6018 (Celect)
• Gage v. Cook Medical, Inc. et al., 1:14-cv-1875 (Günther Tulip)
• Hill v. Cook Medical, Inc., et al, 1:14-cv-6016 (Celect)

The first bellwether trial will involve Elizabeth Jane Hill, a woman from Florida who was implanted with a Cook Celect IVC filter. The bellwether trials are supposed to start in the spring of 2017.

With hundreds of cases involved and potentially hundreds of millions of dollars at stake, nothing is simple or easy, including selecting the first Cook IVC filter bellwether cases. Attorneys from both sides did what they normally do: argue with each other. Given the obligation to zealously defend their clients’ interests, it’s an occupational hazard.

Both sides want every advantage they can get and that includes which cases will be the bellwether cases because they literally set the example or set the tone for the cases that follow. Each side gave the judge seven cases they thought should be the bellwether cases because they represent the types of claims and legal arguments involved in the MDL.

The plaintiffs’ attorneys didn’t like the cases proposed by the defendants and the defendants didn’t like the cases proposed by the plaintiffs. There were disagreements about:

• The types of filters involved in the cases,
• The fact that in some cases filters broke apart, and
• How many cases should involve claims over filter removal.

In the end Judge Young did what judges do. He used his best judgment to come up with list of the first three bellwether cases which, if all goes well, will show that plaintiffs suffered serious injuries through no fault of their own and that they deserve substantial compensation for what they had to endure because of the defective Cook IVC filters.

As always, I will keep you posted.