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 Tonya Brand, 1:14-cv-6018-RLY-TAB
ENTRY ON THE COOK DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF'S FAILURE TO WARN CLAIMS
RICHARD L. YOUNG, JUDGE
Incorporated, Cook Medical LLC (f/k/a Cook Medical
Incorporated), and William Cook Europe APS (collectively
“the Cook Defendants” or “Cook”)
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. The Plaintiffs in this multi-district litigation case
allege that the filters are prone to, inter alia,
tilt, migrate, fracture, and perforate the inferior vena
cava, causing them personal injuries.
present bellwether case is brought by Plaintiff Tonya Brand.
Her claims against the Cook Defendants include strict
liability and negligent failure to war n, strict liability
and negligent design defect, negligent manufacturing,
negligence per se, breach of warranty, loss of
consortium, and punitive damages.
20, 2018, the Cook Defendants filed the present motion for
summary judgment on all claims. Plaintiff failed to respond
to the Cook Defendants' motion with respect to her breach
of warranty, negligent manufacturing, and loss of consortium
claims. Accordingly, the court GRANTS
Cook's motion as to those claims. Bonte v. U.S. Bank
N.A., 624 F.3d 461, 466 (7th Cir. 2010) (noting the
failure to respond to an argument results in waiver). In
addition, the court GRANTS Cook's motion
with respect to Plaintiff's negligent and strict
liability failure-to-warn claims. The basis for those rulings
is set forth below.
suffers from a number of ailments, including spinal disc
degeneration. (Filing No. 8660-1, History and Physical Report
dated 2/24/2009). Due to her worsening lumbar disc disease,
Plaintiff was scheduled for spinal-fusion surgery.
(Id.). Her spinal surgeon, Dr. Thomas Morrison, sent
her to Dr. Mark Rheudasil, a vascular surgeon, before her
surgery so that Dr. Rheudasil could evaluate her. He
recommended an IVC filter for Plaintiff for a number of
reasons, including that Plaintiff: (1) was facing a [b]ig
spine surgery, ” (2) was slightly overweight, (3) had a
history of DVT, (4) had multiple abdominal surgeries that
would complicate the spinal surgery that she was about to
have, and (5) would be on bedrest for a period of time.
(Filing No. 8660-3, Deposition of Dr. Mark Rheudasil at 48).
March 19, 2009, Dr. Rheudasil implanted a Celect IVC filter
into Plaintiff. (Filing No. 8660-4, Rheudasil Operative
Report dated 3/19/2009; Rheudasil Dep. at 32; Filing No.
8660-5, Morrison Operative Report dated 3/19/2009).
Immediately after the filter was inserted, Dr. Rheudasil
performed a vascular surgery to “open up”
plaintiff's abdomen so that Dr. Morrison could operate on
her spine. (Id.). Dr. Morrison then performed the
spinal-fusion surgery. (Id.).
2011, Plaintiff began to experience pain on the inside of her
right thigh. (Filing No. 8660-10, Deposition of Tonya Brand
at 113). She had an ultrasound the following day which
indicated “there was something in [her] leg.”
(Id. at 114). In mid-June 2011, Plaintiff testified
that she was at home and noticed something protruding out of
her thigh. (Id. at 116-17). She pulled it out and
knew it was part of her IVC filter. (Id. at 117).
thereafter, Dr. Rheudasil ordered a full body scan of
Plaintiff. (Id. at 119). The scan indicated that the
filter had fractured and that another strut had migrated to
an area near Plaintiff's spine. (Id.).
14, 2011, Dr. Rheudasil attempted to retrieve the filter
percutaneously but was unsuccessful. (Filing No. 1, Compl.
¶ 29). Dr. Rheudasil and Plaintiff elected to leave the
filter in place until October 22, 2015, at which time Dr.
Rheudasil removed it through open surgery. (Filing No.
8660-11, Operative Report dated 10/22/2015).
other facts material to the disposition of this claim will be
contends that the Cook Defendants failed to provide adequate
warnings regarding the risks associated with the Celect IVC
filter and that she was injured as a result. The parties
agree that Georgia law applies to Plaintiff's claims.