Cook Sees Pair of Blood Clot Filter Cases Reinstated as Timely

Two personal injury lawsuits over allegedly defective Cook Inc. blood clot filters were filed on time under rules Cook argued for earlier in the same consolidated litigation and thus shouldn’t have been dismissed, the Seventh Circuit ruled.

The cases highlight the importance of having a written order at the outset of multidistrict litigation that discusses the ground rules for cases filed directly in the MDL court by injured parties who live elsewhere, Judge David F. Hamilton said Thursday for the appeals court.

Direct filing helps with judicial efficiency but “can bring its own complications and potential pitfalls,” Hamilton said. “The procedure can affect personal jurisdiction, venue, and choice of law.”

Here, Victoria Looper and Sammie Lambert, residents of South Carolina and Mississippi, respectively, both sued Cook over injuries they blamed on its inferior vena cava filters, according to the court. They filed their suits directly in the U.S. District Court for the Southern District of Indiana, which oversees the consolidated pretrial proceedings.

The choice-of-law rules for all three jurisdictions specify the substantive law of the state where the court sits. Indiana has a two-year statute of limitations for personal injury actions, whereas South Carolina has a three-year statute of limitations, according to the court.

Cook asked the MDL court to apply Indiana’s choice-of-law rules, and the court dismissed the two cases as untimely.

The U.S. Court of Appeals for the Seventh Circuit said Looper’s and Lambert’s appeals “raise questions that have broad implications for MDL courts that endorse direct filing for the sake of efficiency.” But the court refrained from “sweeping conclusions” because the course of events in this MDL “showed that Cook implicitly consented to using choice-of-law rules for these plaintiffs as if they had filed in their home states.”

Cook earlier argued for the originating state’s choice of law in at least seven direct-filed cases in the MDL where that position favored it, clearly consenting to that rule, Hamilton said. And the MDL court’s case-management orders also show that understanding, even though the judge didn’t issue a direct-filing order at the beginning of the litigation, he said.

“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,” he said.

Judges Michael S. Kanne and Amy J. St. Eve also served on the panel.

Johnson Law Group, Waters & Kraus LLP, and the Nations Law Firm represented Lambert. Waters & Kraus, Nations, and the Lowe Law Group represented Looper.

Faegre Drinker Biddle & Reath LLP represented Cook and related companies.

The case is Looper v. Cook Inc., 2021 BL 479847, 7th Cir., No. 20-3103, 12/16/21.