An Indiana judge last week gutted the plaintiff’s case in the second bellwether trial in the multi-district litigation brought over Cook Medical‘s inferior vena cava filters.
Tonya Brand sued Cook in 2014, alleging that the Celect IVC filter implanted prior to a spine procedure fragmented, sending the broken pieces into her thigh and near her spine. Her lawsuit included claims for strict liability and negligent failure to warn, strict liability and negligent design defect, negligent manufacturing, negligence per se, breach of warranty, loss of consortium, and punitive damages. Cook filed for summary judgment, seeking to have the case dismissed.
But testimony from the surgeon who implanted the Celect device in Brand, Dr. Mark Rheudasil, indicated that he wouldn’t have treated Brand any differently, Judge Richard Young of the U.S. District Court for Southern Indiana wrote, according to court documents.
“The undisputed evidence reflects that Dr. Rheudasil (1) did not rely on the Celect 4 IVC filter’s [instructions for use], (2) already knew at the time of plaintiff’s implant about all of the complications plaintiff experienced, and (3) would not have treated plaintiff any differently even knowing now the complications that she actually suffered. Therefore, plaintiff is unable, as a matter of law, to establish causation in her strict liability and negligent failure to warn claims,” Young wrote.
Brand also failed to respond to Cook’s summary judgment bids to strike her breach of warranty, negligent manufacturing and loss of consortium claims, which Young also dismissed. That leaves only her strict liability and negligent design defect and negligence per se claims intact.