7th Circuit revives complaints in Cook MDL

After Cook, Inc., had a pair of complaints dismissed from a multi-district litigation by arguing the opposite of what it had asserted against other complaints filed in the same MDL, the 7th Circuit Court of Appeals reinstated the two lawsuits, finding the switcheroo was not fair to the plaintiffs.

Victoria Looper and Sammie Lambert are among the plaintiffs in the thousands of medical product-liability suits filed against Cook and related entities, alleging that the company’s inferior vena cava (IVC) filters were defective.

All the cases were placed in a multi-district litigation and assigned to the U.S. District Court for the Southern District of Indiana. As part of the case management plan drafted by the parties and approved by the court, the plaintiffs could use a short form complaint and file directly to the federal court in Indianapolis rather than filing in their home districts and waiting for the cases to be tagged and transferred.

The 7th Circuit noted the choice of law in MDL cases can be affected by whether the complaint if filed directly or waits for a transfer.

Filing directly in a multi-district litigation means the district court should apply the choice-of-laws rule of its own state since that is where the case was actually filed. However, the 7th Circuit explained, district courts have taken a different approach by treating a direct-filed case as if it had been filed in the plaintiff’s original state and applying that state’s choice-of-law rules.

The latter approach has been endorsed by the 7th Circuit and was the approach first advocated by Cook.

Cook argued for choice of law rules from the originating jurisdictions in a set of six cases known as the Sales-Orr cases. The medical device manufacturer took the same approach in the Valerie Graham case where it filed a motion to dismiss on statue-of-limitations grounds. Cook argued for the district court to adopt the rule from In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 1375011 (S.D. Ill. April12, 2011) that was later ratified by Dobbs v. DePuy Orthopedics, Inc., 842 F.3d 1045 (7th Cir. 2016).

Citing Yasmin, Cook argued, “courts have found that the ‘better approach is to treat foreign direct file cases as if they were transferred from a judicial district sitting in the state where the case originated.’”

However, when Looper and Lambert filed their lawsuits directly, Cook changed its position. The manufacturer moved to have the cases dismissed because they were filed after the Hoosier state’s two-year statute of limitations on personal injury actions had expired.

The district court agreed and tossed the two complaints.

A unanimous 7th Circuit panel reversed in the consolidated appeals, Victoria Looper v. Cook Incorporated, et al., 20-3103, and Sammie Lambert v. Cook Incorporated, et al., 20-3104.

The appellate court found that under the approach Cook had agreed to, Looper’s and Lambert’s complaints were timely filed because their home states of South Carolina and Mississippi, respectively, has three-year statutes of limitations.

“A plaintiff may tailor her litigation strategy to the current state of play in the MDL and should not have a trap sprung on her based on a retroactive change of the ground rules,” Judge David Hamilton wrote for the court. “Even if the district court was or remains inclined to allow Cook to revoke its implicit consent and to change its position on the choice-of-law question for directly filed cases, such a change should not be applied retroactively to cases where corrective action was no longer possible in response to Cook’s and the district court’s change in position.”

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