The U.S. Supreme Court has declined to hear an appeal filed by IVC (inferior vena cava) filter manufacturer Cordis Corporation after lower courts blocked Cordis’s attempt to remove (transfer) eight Cordis vena cava filter lawsuits from California state court to the federal district court. The Court’s November 27 order, was delivered without comment. The case is Cordis Corp. v. Jerry Dunson, case number 17-257.
The Court’s decision left in place an earlier ruling from the Ninth Circuit Court of Appeals that clarified a federal law known as the Class Action Fairness Act, or CAFA. CAFA allows defendants to remove actions involving multiple lawsuits from state courts to federal courts, where they believe outcomes will be more favorable.
This legal skirmish began in April 2016, when Jerry Dunson and eight other plaintiffs filed suit against Cordis in Alameda County Superior Court, claiming to have suffered injuries resulting from the implantation of a Cordis vena cava filter.
IVC filters are implanted in the inferior vena cava, a major vein that carries blood from the lower body back to the heart. They are meant to catch blood clots, preventing them from traveling to the lungs and causing a pulmonary embolism. But they have a history of fracturing, with parts breaking loose and traveling to the heart. The entire device may migrate in the IVC, even moving to the heart itself. The devices may also puncture the IVC and damage surrounding organs. Injuries are often serious and sometimes fatal and they have led to thousands of IVC filter lawsuits.
Courts Define a “Bellwether Trial” in IVC Filter Cases
The Dunson complaint was quickly followed by seven more multi-plaintiff lawsuits, all claiming similar injuries, including those listed above. On May 27, 2016, the Dunson plaintiffs joined plaintiffs in the other actions in a motion to consolidate (combine) all eight lawsuits (involving 140 plaintiffs) for pretrial discovery and to participate in a bellwether trial process. The consolidation, according to the motion, was proposed to avoid “unnecessary duplication of evidence and procedures,” inconsistent adjudication from multiple judges and juries, and having the same witnesses testify on the same issues case after case. Such motions are commonly used to simplify the litigation of multiple claims when the issues involved in the claims are very similar. The bellwether trial process gives both sides a chance to see how juries respond to the evidence presented and can lead to quicker settlements.
Cordis saw the motion as a chance to use CAFA to transfer all eight lawsuits (and subsequently 6 more) from the Alameda County Superior Court to the federal U.S. District Court for the Northern District of California.
CAFA, which was passed by Congress in 2005, permits the removal of certain “mass actions” to federal court. However, the law defines mass action as a civil action “in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” (The sum of the claims of all the plaintiffs must total more than $5,000,000.)
The key phrase here is “tried jointly.” It means the plaintiffs participating in the mass action agree that the results of a trial involving one or more plaintiffs will be binding on all the other plaintiffs.
Cordis asserted that by proposing a bellwether trial process, the plaintiffs in the eight consolidated lawsuits had agreed to be tried jointly, and thus met the CAFA definition of mass action. The plaintiffs, and ultimately the Ninth Circuit, disagreed.
“ … nothing they [the plaintiffs] said indicated that they were referring to a bellwether trial whose results would have preclusive effect on the plaintiffs in the other cases. The district court therefore correctly held that removal jurisdiction does not exist under CAFA’s mass action provision, and it properly remanded the cases to state court." - Ninth Circuit Court of Appeals, Opinion, April 14, 2017, Jerry Dunson et al. v. Cordis Corporation, No 17-15257
Ninth Circuit Court of Appeals Decision
In his opinion, Circuit Judge Paul J. Watford, writing for a three-judge Ninth Circuit panel, noted that there are two types of bellwether trial processes. In one type, plaintiffs may choose to be bound by trial outcomes. But there are also bellwether trials, Judge Watford wrote, in which the outcome is only binding on parties involved in the trial itself and the trial results “are used in the other cases purely for informational purposes as an aid to settlement.”
Moreover, the panel noted that the plaintiffs in this case specifically stated that they did not agree to be bound jointly by the bellwether trial results. In their motion for consolidation, attorneys for the plaintiffs explained that they were “not requesting a consolidation of Related Actions for purposes of a single trial to determine the outcome for all plaintiffs, but rather a single judge to oversee and coordinate common discovery and pretrial proceedings.”
The Ninth Circuit concluded that nothing in the plaintiffs’ motion indicated that by requesting a bellwether trial process, the plaintiffs intended for the trial to have binding effects on plaintiffs in the other cases. The panel, therefore, affirmed an earlier decision by U.S. District Court Judge Edward M. Chen remanding (sending back to a lower court) the consolidated lawsuits to the state superior court in Alameda County.
Thousands of IVC Lawsuits Filed
Thousands of IVC filter lawsuits have been filed against IVC filter manufacturers nationwide. More than 3,600 cases against IVC filter manufacturer Cook Medical have been consolidated in multidistrict litigation in the U.S. District Court for the Southern District of Illinois. Another 3,000 lawsuits against IVC filter maker C. R. Bard are centralized in the U.S. District Court for Arizona.
Cordis makes two IVC filters, the Cordis TrapEase Permanent Vena Cava Filter and the Cordis OptEase Retrievable Vena Cava Filter. In a 2016 study comparing various brands of IVC filters, researchers at the Stanford University Medical Center reported that both types of Cordis vena cava filters are prone to fracture and filter occlusion compared to other filters. More than 300 plaintiffs have filed suit against Cordis in Alameda County Superior Court. (Cordis Corporation is headquartered in Fremont, CA, which is also in Alameda County.)
If you or someone you know has been injured by an IVC filter, the IVC filter team at Baum Hedlund Aristei & Goldman is available to discuss your legal options at no obligation. You may fill out a brief contact form or just call the firm at (855) 948-5098 for a free case evaluation.
