United States District Court, S.D. Indiana, Indianapolis Division
In Re COOK MEDICAL, INC., IVC FILTERS MARKETING, SALES PRACTICES AND PRODUCT LIABILITY LITIGATION This Document Relates to Annette Sales-Orr, 116-cv-2636 Michael Fox, 117-cv-255 William Ivy, 116-cv-3319 Timothy Henderson, 117-cv-368 Betty Johnson, 117-cv-488 Emilie Apple, 116-cv-3244 No. 1:14-ml-02570-RLY-TAB
ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS BASED
ON THE STATUTE OF REPOSE
RICHARD L. YOUNG, JUDGE
Incorporated, Cook Medical LLC (f/k/a Cook Medical
Incorporated), and William Cook Europe APS (collectively
“the Cook Defendants”), develop, manufacture,
sell, and distribute medical devices for use in medical
applications throughout the United States and the world. The
medical devices at issue in this litigation are the Cook
Defendants' Inferior Vena Cava Filters, most notably the
Günther Tulip® Vena Cava Filter and the Cook
Celect® Vena Cava Filter. These devices are used for the
prevention of pulmonary embolism by trapping blood clots as
they travel through the inferior vena cava. Annette
Sales-Orr, Michael Fox, William Ivy, Timothy Henderson, Betty
Johnson, and Emilie Apple, the Plaintiffs herein, allege that
the Filters caused them personal injuries for which they seek
compensation pursuant to, inter alia, strict
liability failure to warn, strict liability design defect,
negligence, and breach of warranty.
matter is before the court on Defendants' Motion for
Judgment on the Pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The court, having read and reviewed the
parties' submissions and the applicable law, now finds
the Cook Defendants' motion should be GRANTED in part and
DENIED in part.
Standard of Review
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “A Rule 12(c) motion is governed by
the same standards as a motion to dismiss for failure to
state a claim under Rule 12(b)(6).” Lodholtz v.
York Risk Servs. Grp., 778 F.3d 635, 639 (7th Cir.
2015). To survive a Rule 12(b)(6) motion, a complaint must
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). For purposes of ruling
on the Cook Defendants' motion, the court accepts
Plaintiffs' well-pleaded factual allegations as true and
construes all reasonable inferences in their favor.
Tierney v. Advocate Health & Hosps. Corp., 797
F.3d 449, 451 (7th Cir. 2015).
Choice of Law
federal district court sitting in diversity applies the
substantive law of the state in which it sits. Erie R.
Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). Statutes of
repose are substantive matters. See Nett ex rel. Nett v.
Bellucci, 269 F.3d 1, 5 (1st Cir. 2001); Alexander
v. Beech Aircraft Corp., 952 F.2d 1215, 1223 (10th Cir.
1991); Wayne v. T.V.A., 730 F.2d 392, 401-02 (5th
Cir. 1984), cert. denied, 469 U.S. 1159 (1985);
Myers v. Hayes International Corp., 701 F.Supp. 618,
625 (M. D. Tenn. 1988); Trinity Indus. Leasing Co. v.
Midwest Gas Storage, Inc., 33 F.Supp.3d 947, 974 (N.D.
Ill. 2014) (citing Gill v. Evansville Sheet Metal Works,
Inc., 970 N.E.2d 633, 637 n. 4 (Ind. 2012)).
motion addresses those Plaintiffs, whose cases originated
outside of this court's judicial district but were
directly filed in this MDL forum (“foreign direct filed
cases”), pursuant to the court's direct filing
order. The specific issue raised in the present motion is
whether the court should apply the choice-of-law rules of the
MDL forum (Indiana) or the choice-of-law rules of the state
where the case would have been brought had it not been part
of this MDL.
2011, the Southern District of Illinois addressed this issue
and held that “the best approach is to treat foreign
direct filed cases as if they were transferred from the
judicial district sitting in the state where the case
originated.” In re Yasmin, No.
3:09-md-2100-DRH-PMF, MDL No. 2100, 2011 U.S. Dist. LEXIS
39820, at *18 (S.D. Ill. April 11, 2011). The court adopts
this approach, as it is in keeping with the rule that the
transferee court applies the law of the state in which the
transferor court is located. Van Dusen v. Barrack,
376 U.S. 612, 639 (1964) (“[W]here the defendants seek
transfer, the transferee district court must be obligated to
apply the state law that would have applied if there had been
no change of venue. A change of venue under § 1404(a)
generally should be, with respect to state law, but a change
of courtrooms.”). As noted by a sister district court,
“it would be an odd result to subject plaintiffs to
[Indiana] law simply because they took advantage of the
direct filing procedure-a procedure that provides benefits to
all parties and preserves judicial resources.” In
re Bausch & Lomb, Inc., Nos. 2:06-cv-2659-DCN and
2:06-cv-2716-DCN, MDL No. 1785, 2007 WL 3046682, at *3
(D.S.C. Oct. 11, 2007).
filed her Short Form Complaint on October 4, 2016. (In re:
Cook Medical, 1:16-cv-2636-RLY-TAB, Filing No. 1,
Compl.). She was implanted with the Cook Bird's Nest Vena
Cava Filter in March 2002 and the Cordis TrapEase Vena Cava
Filter in June 2003. (Id. ¶ 11). At the time of
implantation, Sales-Orr was a resident of Georgia, her
surgery was performed in a Georgia hospital, and her alleged
injury occurred while she was a Georgia resident.
(Id. ¶¶ 4, 5, 12). She is now a resident
of Tennessee. (Id. ¶ 6).
parties disagree on whether Georgia or Tennessee
choice-of-law rules apply. Georgia employs the lex loci
delecti approach to choice of law in tort cases, which
“requires application of the substantive law of the
place where the tort or wrong occurred.” McCarthy
v. Yamaha Motor Mfg. Corp., 994 F.Supp.2d 1329, 1332
(N.D.Ga. 2014) (quoting Carroll Fulmer Logistics Corp. v.
Hines, 710 S.E.2d 888, 890 (Ga.Ct.App. 2011)). This is
the place where the claimed injury was suffered, not the
place where the tortious act was committed. Id.
Tennessee applies the “most significant
relationship” approach of the Restatement (Second) of
Conflict of Laws §§ 6, 145, 146, and 175 (1971),
under which the court applies the substantive law of the
state that, “with respect to that issue, has the most
significant relationship to the occurrence and the
parties.” Hataway v. McKinley, 830 S.W.2d 53,
59 (Tenn. 1992) (quoting Restatement (Second) Conflict of
Laws (1971) § 145). Under either approach, a court
addressing a claim of injuries in Georgia from a Georgia
surgery on a then-Georgia resident would apply Georgia law.
Thus, no conflict of law exists and no further analysis is
product liability statute incorporates a statute of repose,
barring claims for strict liability, negligence, or breach of
warranty if the suit is not brought “within ten years
from the date of the first sale.” Ga. Code Ann. §
51-1-11; see also Powell v. Harsco Corp., 433 S.E.2d
608, 609 (Ga.Ct.App. 1993) (“An action in products
liability may proceed on one or a combination of theories of
negligence, strict liability, or breach of warranty.”).
The statute reads, in relevant part:
(b)(1) The manufacturer of any personal property sold as new
property directly or through a dealer or any other person
shall be liable in tort, irrespective of privity, to any
natural person who may use, consume, or reasonably be
affected by the property and who suffers injury to his person
or property because the property when sold by the
manufacturer was not merchantable and reasonably suited to
the use intended, and its condition when sold is the
proximate cause of the injury sustained.
(b)(2) No action shall be commenced pursuant to this
subsection with respect to an injury after ten years from the
date of the first sale for use or consumption of the personal
property causing or otherwise bringing about the injury.
(c) The limitation of paragraph (2) of subsection (b) of this
Code section regarding bringing an action within ten years
from the date of the first sale for use or consumption of
personal property shall also apply to the commencement of an
action claiming negligence of a manufacturer as the
basis of liability, except an action . . . arising out of
conduct which manifests a willful, reckless, or wanton
disregard for life or property. Nothing contained in this
subsection shall relieve a manufacturer from the duty to warn
of a danger arising from use of a product once that danger
becomes known to the manufacturer.
Ga. Code Ann. § 51-1-11(b)(2) & (c) (emphasis
the Cook Defendants contend Sales-Orr's tort claims are
barred because she filed her Short Form Complaint more than
ten years after her first surgery-i.e., “the date of
first sale or use.” Sales-Orr does not agree. She
argues her claims fall within the exceptions noted in
subsection (c)(2). Specifically, citing Chrysler Corp. v.
Batten, 450 S.E.2d 208 (Ga. 1994), she argues her claim
for failure to warn is outside the ambit of the statute of
repose. She also argues her defective design ...