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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

December 5, 2018

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

         Cook 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.

         This 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.

         On July 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.

         I. Background

         Plaintiff 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).

         On 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.).

         In May 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).

         Soon 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.).

         On July 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).

         All other facts material to the disposition of this claim will be addressed infra.

         II. Discussion

         Plaintiff 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.

         A. ...


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