MDL Court Denies Cook Medical’s Motion for Summary Judgment as to the Defective Design of its IVC Filter and Finds that Defendants Argued the Wrong Law 

With less than two weeks before the start of the first bellwether trial in the Cook Medical IVC multidistrict litigation, on October 10, 2017, the Court issued an Order denying Defendants’ Motion for Summary Judgment as to negligence and strict liability design defect claims.  The denial may have been partially due to the Defendants arguing the wrong legal standard under Florida law.

The case involves Plaintiff, Elizabeth Jane Hill, a woman from Florida who was implanted with a Cook Celect IVC filter before her scheduled back surgery.  After implant, the filter migrated and perforated her vena cava and small intestine.  In her complaint, she alleges that “the Cook Defendants were under a duty to act reasonably to design, develop, manufacture, market and sell a product that did not present a risk of harm or injury” to people receiving their IVC filters.

Recently, the Cook Defendants moved for summary judgment on Ms. Hill’s negligent design and strict liability design defect claims.

Because the Plaintiff is from Florida, U.S. District Judge Richard L. Young of the Southern District of Indiana applied applicable Florida product liability law.  The judge recognized that to prevail on a strict product liability action based upon design defect, the plaintiff must prove that (1) a product (2) produced by a manufacturer (3) was defective or created an unreasonably dangerous condition (4) that proximately caused (5) injury.  In determining whether the Plaintiff had established a defective design, Judge Young observed that Florida courts had previously recognized both the consumer-expectation test and the risk-utility test. To illustrate:

• Consumer Expectation Test – A product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

• Risk/Utility Test – A product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.

The Cook Defendants moved for summary judgment utilizing the risk-utility test because, they argued, this case involves a complex medical device. However, the Court noted that, in a 2015 decision, the Florida Supreme Court rejected the risk-utility test for design defect claims.  Applying this controlling Florida authority, Judge Young held that Cook had moved for summary judgment under the wrong test and “put forth no evidence of what an ordinary consumer would expect from the Celect IVC filter, whether the consumer is defined as Plaintiff or [her doctor].”  While Defendant Cook attempted to argue consumer expectation in their reply, the Court stated “arguments raised for the first time in a reply brief are waived.”

While many remaining pre-trial matters are still being sorted out by the Court before the October 23, 2017 bellwether trial, it appears the jury will likely hear evidence that Cook’s IVC was defective in its design because it failed to meet reasonable consumer expectations.

If you or a loved one suffered IVC filter side effects such as migration, IVC perforation, DVT or pulmonary embolism, an IVC filter lawsuit may help you obtain compensation for your medical bills, pain and suffering, lost wages and more.  The IVC filter lawyers at

are providing free consultations and claim evaluations for individuals throughout the United States.