IVC Filter Litigation Is the Hot, Trending Practice Area

Lawyer Troy Brenes
Troy Brenes

Litigation involving Cook and Cordis IVC Filters is now the hot, trending practice area for mass tort lawyers, with hundreds of cases already filed, and hundreds of thousands of potential clients nationwide who need attorneys.

“These devices cause the one thing they are design to prevent —  blood clots,” says said Troy Brenes of Aliso Viejo, California, a lawyer who is active in IVC Filter litigation. “They cause the development and increase risk of thrombosis and pulmonary embolism.”

The cause of the litigation is the rapacious greed of the two companies competing to get market share, rolling out one defective product after another for the last 16 years, brushing aside reports of patient deaths and lying to the FDA about it.

  • Cordis IVC Filter Litigation is centered in the California state courts, where hundreds of cases are up for consolidation. Cordis Corporation is organized under the laws of Florida, with its principal place of business in Fremont, California.
  • Bard IVC Filter Litigation is consolidated in MDL 2641 (multi-district litigation docket) in US District Court in Arizona.
  • Cook Medical IVC Filter Litigation is consolidated in MDL 2570 in US District Court for the Southern District of Indiana. The defendants are Cook Medical, LLC and Cook Inc., both of Bloomington, IN, and William Cook Europe APS, Bjaeverskov, Denmark. The federal district court has created a short form complaint.
  • There is no MDL for Boston Scientific Corp IVC Filter Litigation. “We believe it is possible that more cases will be filed and a motion for consolidation and transfer may be formed in an effort to form an MDL,” says Mass Tort Consultant John Ray.

Brenes and John Dalimonte of Boston spoke on a recent webinar about the litigation sponsored by the Consumer Attorney Marketing Group. 

Plaintiff Numerosity

John Dalimonte
John Dalimonte

The number of potential plaintiffs is immense: Since 2000, Cook has sold 264,006 Tulip Filters and 129,089 Celect Filters. Attorneys Brenes and Dalimonte estimate that 200,000 Cordis filters have been inserted into patients.

Settlement values of the cases are unknown, and a settlement conference on June 7 with Cook “went nowhere.” The first bellwether trials are scheduled for next year.

IVC filters are small, cage-like devices that are inserted into the inferior vena cava – a major vein leading directly to the heart. They were supposed to capture blood clots and prevent them from reaching the lungs.

However, Dalimonte identified three issues with the Cook Tulip and Celect IVC Filters:

  • Migration downward and upward. The IVC Filters can tilt or shift, making them almost impossible to remove.
  • Device fracture, causing blood clots (embolism) in the heart, lung, liver and kidneys. Research shows that the devices experienced fracture rates of 37% to 40% after five and a half years.
  • Perforation, where stress on the IVC Filter struts leads to fractures that puncture adjacent organs and vessels.

“There are a lot of cases out there,” Dalimonte says, because the manufacturers conducted off-label marketing directly to bariatric patients, trauma patients and orthopedic surgery patients.

Brenes and Dalimonte will be speaking at the upcoming AAJ annual convention, July 22-25 in Los Angeles. 

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Bard CEO Flees Cameras when NBC Asks about Defective IVC Filters

Fast forward to 3:40 in the video to see John H. Weiland, President, CEO and Director of CR Bard Inc., flee an NBC reporter with questions about the company’s defective IVC filter.

At least 27 deaths have been associated with Bard’s Recovery filter — a spider-shaped apparatus that is inserted into the largest vein in the body — over the course of a decade, according to NBC News. Government data shows approximately 300 other non-fatal problems have also been reported with the Recovery.

Even as death and injury reports were climbing, the company decided not to recall the Recovery. Instead, Bard sold about 34,000 of them for nearly three years before replacing them with a modified version with a new name, G2.

Multi District Litigation

Lawsuits from across the country have been consolidated in MDL 2641 docket in Arizona federal court.  Fact discovery is under way. The parties reported that they have scheduled seven depositions and are in the process of scheduling more.

Each year, about a quarter of a million blood clot filters are implanted in patients who can’t tolerate blood thinners, most without incident. Eleven companies sell them in the U.S., but Bard’s Recovery filter stood out early as a risky device.

Bard officials declined NBC News’ requests for interviews but in a statement said all its filters have been “appropriately cleared by [the] FDA based on required and accurate documentation and that when used as instructed they demonstrate “significant benefits to patients.”

 

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Bard Signals Settlement of IVC Filter Lawsuit, while Struggling to Suppress Evidence

03/30/2016 – Plagued with mounting allegations and evidence of wronging related to various IVC Filter Devices C. R. Bard, Inc. made an announcement in recent 10q filings with the SEC that we interpret as Bard announcing an Intent to settle many, if not all lawsuits, related to certain Inferior Vena cava (IVC) Filters.

Bard IVC Filter Lawsuit Settlement News
Bard IVC Filter Lawsuit Settlement News

In the same 10q disclosures in which Bard informed stockholders that certain complaints over their IVC Filter product line had been consolidated in a Multidistrict Litigation in Arizona, Bard also inserted language indicating they intended to settle complaints related to their IVC line, adding that they would fight any claim that did not settle.  We found the last comment interesting as we are unsure what other alternative Bard would have other than to fight claims that did not settle.

Although the indication of a desire to settle claims at such an early stage of Bard IVC Litigation did not surprise many of those following the litigation, it is safe to say that such an early stage settlement indication is extremely unusual. It is more common for defendants in case like the Bard Litigation to at least provide some pretense of defense to their stockholders early such a litigation.

Bard Has a Great Deal They Seem to Want to Hide

One possible explanation for Bards indication of early settlement may stem from Bard exectives concluding that the cost of paying claims will be less damaging to their image and stock price than what may come out in discovery if the litigation goes to forward.

Bard has filed motions to suppress a great deal of evidence, claiming that the evidence is protected work product or shielded from discovery for other reasons.

Some of the evidence Bard has moved to suppress include:

1: The Lehmann Report.  The Lehmann Report was issued by John Lehmann MD in 2004. It appears that Dr. Lehmann was hired by Bard to conduct research ostensibly intended to demonstrate the Safety and Effectiveness of certain Bard IVC Filter Products. What Dr. Lehmann ultimately reported in what is now referred to as the Lehmann report was not what Bard had hoped for.  The report did not support the Safety and Effectiveness of Bard Products in the manner Bard undoubtedly hoped.

Plaintiffs’ Counsel seeks to have The Lehman Report entered into evidence, Bard Counsel seeks to suppress the Lehmann Report as protected work product.

One argument Plaintiffs lawyers have to counter defense arguments related to the Lehmann report being Confidential and Privilege work product arises from the fact that Bard did not diligently protect this supposedly Confidential Work Product.

NBC News was easily able to obtain a copy of The Lehmann report which it featured in a series of reports related to Bards beleaguered IVC products.  Mass Tort Nexus investigators were also able to obtain a copy of The Lehmann Report from public sources with little difficulty. Arguably, Bard did not meet the necessary burden of keeping its confidential document, confidential.

Other documents Bard has moved to suppress include:

  1. Certain Bard Promotional Material.
  2. Bard Media Plan Related to how the company would deal with the publicity from the NBC Reports and other negative attention it was attracting related to their IVC product line.
  3. Communications between Bard and a Public Relations firm it hired to help with the fallout from negative publicity related to its IVC product line.
  4. Certain Adverse Event Reports related to its IVC Product Line.
  5. Certain Communications with the FDA related to its IVC product line.

Again Plaintiffs’ counsel may argue that Bard has failed in their diligence to maintain allegedly confidential documents confidential as both NBC news was able to obtain many of the documents Bard wishes to suppress. Additionally, Mass Tort Nexus was able to obtain copies of the majority of the documents Bard wishes to suppress from public sources.

Copies of many of the documents Bard wishes to suppress may be found at the following link:

Documents Bard Wishes to Suppress

Another factor which may contribute to Bard desiring to end the IVC Filter Litigation sooner rather than later stems from the shellacking they received at the hands of plaintiff attorneys Raymond Lopez and Julia Reed Zinc in a case tried in Arizona before the Bard MDL was formed.

These two capable attorneys took on the giant medical device manufacturer in Phillips v Bard an Arizona case.  The documents and transcripts from that case clearly show why Bard decided to settle that case before it went to a jury.  Raymond and Julia deftly pressed Bard insiders, who appeared to have been coached by a leading member of the actor’s guild, bringing to light truths that Bard would likely have preferred remain in the dark.

See the documents and Transcripts from Philips v. Bard.

Ramon Lopez is now co-lead counsel in the Bard MDL, Julia Reed Zinc also serves in a Plaintiffs Leadership positon. Richard North, Bards defense attorney in Phillips v Bard heads up Bards defense team in the MDL.

Incidentally, Bard now announces the following on its website:

Bard no longer manufactures or sells the Meridian®, Eclipse®, G2X®, G2®, and Recovery Filters.

To stay up to date on all of the developments in the Bard MDL as other ongoing MDLs, subscribe to the Mass Tort Nexus Professional Site at this link:  Sign Up

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