Dara Berman-Cheung et al v. Cook Group, Inc. et al

Filing 35

ORDER TRANSFERRING CASE to the Southern District of Indiana. (sfbS, COURT STAFF) (Filed on 8/1/2017)

Case MDL No. 2570 Document 318 Filed 08/01/17 Page 1 of 3
A CERTIFIED TRUE COPY

FILED

Laura A. Briggs, Clerk
U.S. District Court
Southern District of Indiana

By

Deputy Clerk

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

4:09 pm, Aug 01, 2017
U.S. DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

Laura A. Briggs, Clerk

IN RE: COOK MEDICAL, INC., IVC FILTERS
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

MDL No. 2570

TRANSFER ORDER

Before the Panel:* Plaintiffs and certain defendants1 in the two actions listed on Schedule
A move under Panel Rule 7.1 to vacate our orders conditionally transferring their actions to MDL
No. 2570. The Cook defendants2 oppose the motions to vacate.
After considering the argument of counsel, we find these actions involve common questions
of fact with the actions transferred to MDL No. 2570, and that transfer under 28 U.S.C. § 1407 will
serve the convenience of the parties and witnesses and promote the just and efficient conduct of the
litigation. Like many of the already-centralized actions, these actions involve factual questions
arising from allegations that defects in the design of Cook’s inferior vena cava filters make them
more likely to fracture, migrate, tilt, or perforate the vena cava, causing injury. See In re: Cook
Med., Inc., IVC Filters Marketing, Sales Practices & Prods. Liab. Litig., 53 F. Supp. 3d 1379
(J.P.M.L. 2014).
In support of the motions to vacate, movants argue that (1) federal subject matter jurisdiction
is lacking; (2) plaintiffs allege unique medical negligence claims against their medical providers; and
(3) transfer would cause movants prejudice, undue delay, and inconvenience. The Panel often has
held that jurisdictional issues do not present an impediment to transfer, as plaintiffs can present these

*

Judge Marjorie O. Rendell took no part in the decision of this matter.

1

In the District of South Dakota action, Brian R. Baxter, M.D.; Radiology Associates
Imaging Group, LLC, d/b/a Dakota Radiology; and Rapid City Regional Hospital (the healthcare
defendants). Rapid City Regional Hospital alternatively requests the Panel separate and remand the
claims against it to the District of South Dakota.
2

In the action pending in the Northern District of California, Cook Group, Inc., Cook
Medical LLC, and William Cook Europe, ApS. In the action pending in the District of South
Dakota, Cook Incorporated; Cook Group Incorporated; Cook Medical LLC; Cook Research
Incorporated f/k/a Medical Engineering and Development, Inc.; Cook Medical Technologies LLC;
Cook Denmark Holdings ApS; Cook Group Europe ApS; Cook Nederland BV; and William Cook
Europe ApS.

Case MDL No. 2570 Document 318 Filed 08/01/17 Page 2 of 3

-2arguments to the transferee judge.3 See, e.g., In re: Prudential Ins. Co. of Am. Sales Practices Litig.,
170 F. Supp. 2d 1346, 1347-48 (J.P.M.L. 2001). In fact, the transferee judge has ruled upon at least
one motion to remand to state court. We also are not convinced that movants’ purported
inconvenience or prejudice makes transfer unwarranted. While transfer of a particular action might
inconvenience or delay some parties to that action, such a transfer often is necessary to further the
expeditious resolution of the litigation taken as a whole. See, e.g., In re: Crown Life Ins. Premium
Ins. Litig., 178 F. Supp. 2d 1365, 1366 (J.P.M.L. 2001).
The presence of medical negligence claims in these actions does not negate the efficiencies
promoted by transfer. Products liability cases usually involve some plaintiff-specific factual issues,
and these are not a bar to transfer. See, e.g., In re: Zimmer Durom Hip Cup Prods. Liab. Litig., 717
F. Supp. 2d 1376, 1378 (J.P.M.L. 2010). Moreover, MDLs involving medical devices often include
similar claims against healthcare defendants. See, e.g., Transfer Order (Malcolm), MDL No. 2327,
ECF No. 1311, at p. 2 (J.P.M.L. Oct. 17, 2013) (“There are numerous medical negligence claims
pending in MDL No. 2327 against various healthcare defendants, most of whom are not named in
more than one action.”).
IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the
Southern District of Indiana and, with the consent of that court, assigned to the Honorable Richard
L. Young for inclusion in the coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

3

Lewis A. Kaplan
R. David Proctor

Moreover, under Panel Rule 2.1(d), the pendency of a conditional transfer order does not
limit the pretrial jurisdiction of the court in which the subject action is pending. Between the date
a remand motion is filed and the date that transfer of the action to the MDL is finalized, a court
generally has adequate time to rule on a remand motion if it chooses to do so.

Case MDL No. 2570 Document 318 Filed 08/01/17 Page 3 of 3

IN RE: COOK MEDICAL, INC., IVC FILTERS
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

MDL No. 2570

SCHEDULE A

Northern District of California

SD/IN: 1:17-cv-06076-RLY-TAB

BERMAN-CHEUNG, ET AL. v. COOK GROUP, INC., ET AL., C.A. No. 5:17-02564
District of South Dakota

SD/IN: 1:17-cv-06077-RLY-TAB

JEWETT, ET AL. v. BAXTER, M.D., ET AL., C.A. No. 5:17-05036