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In re Cook Medical Inc. IVC Filters Marketing, Sales Practices And Product Liability Litigation

United States District Court, S.D. Indiana, Indianapolis Division

May 31, 2017

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



         Cook 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.

         This 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.

         I. Standard of Review

         “After 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).

         II. Choice of Law

         A 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)).

         This 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.

         In 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).

         III. Discussion

         A. Sales-Orr

         Sales-Orr filed her Short Form Complaint[1] 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).

         The 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 necessary.

         Georgia's 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 added).

         Here, 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 ...

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