SALES-ORR v. COOK INCORPORATED, et al.

Filing 34

ORDER granting in part and denying in part (4186) Motion for Judgment on the Pleadings in case 1:14-ml-02570-RLY-TAB. *See order for detailed information*. Signed by Judge Richard L. Young on 5/31/2017. Associated Cases: 1:14-ml-02570-RLY-TAB, 1:16-cv-02636-RLY-TAB, 1:16-cv-03244-RLY-TAB, 1:16-cv-03319-RLY-TAB, 1:17-cv-00255-RLY-TAB, 1:17-cv-00368-RLY-TAB, 1:17-cv-00488-RLY-TAB(NLR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

In Re: COOK MEDICAL, INC., IVC
FILTERS MARKETING, SALES
PRACTICES AND PRODUCT
LIABILITY LITIGATION
___________________________________

)
)
)
)
)
)
This Document Relates to:
)
)
Annette Sales-Orr, 1:16-cv-2636
)
Michael Fox, 1:17-cv-255
)
William Ivy, 1:16-cv-3319
)
Timothy Henderson, 1:17-cv-368
)
Betty Johnson, 1:17-cv-488
)
Emilie Apple, 1:16-cv-3244
)
___________________________________ )

1:14-ml-02570-RLY-TAB
MDL No. 2570

ENTRY ON MOTION FOR JUDGMENT ON THE PLEADINGS BASED ON
THE STATUTE OF REPOSE
Cook Incorporated, Cook Medical LLC (f/k/a Cook Medical Incorporated), and
William Cook Europe APS (collectively “the Cook Defendants”), develop, manufacture,
sell, and distribute medical devices for use in medical applications throughout the United
States and the world. The medical devices at issue in this litigation are the Cook
Defendants’ Inferior Vena Cava Filters, most notably the Günther Tulip® Vena Cava
Filter and the Cook Celect® Vena Cava Filter. These devices are used for the prevention
of pulmonary embolism by trapping blood clots as they travel through the inferior vena
cava. Annette Sales-Orr, Michael Fox, William Ivy, Timothy Henderson, Betty Johnson,
and Emilie Apple, the Plaintiffs herein, allege that the Filters caused them personal
1

injuries for which they seek compensation pursuant to, inter alia, strict liability failure to
warn, strict liability design defect, negligence, and breach of warranty.
This matter is before the court on Defendants’ Motion for Judgment on the
Pleadings pursuant to Federal Rule of Civil Procedure 12(c). The court, having read and
reviewed the parties’ submissions and the applicable law, now finds the Cook
Defendants’ motion should be GRANTED in part and DENIED in part.
I.

Standard of Review
“After the pleadings are closed—but early enough not to delay trial—a party may

move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “A Rule 12(c) motion is
governed by the same standards as a motion to dismiss for failure to state a claim under
Rule 12(b)(6).” Lodholtz v. York Risk Servs. Grp., 778 F.3d 635, 639 (7th Cir. 2015). To
survive a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). For purposes of ruling on the Cook Defendants’
motion, the court accepts Plaintiffs’ well-pleaded factual allegations as true and construes
all reasonable inferences in their favor. Tierney v. Advocate Health & Hosps. Corp., 797
F.3d 449, 451 (7th Cir. 2015).
II.

Choice of Law
A federal district court sitting in diversity applies the substantive law of the state

in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). Statutes of repose
2

are substantive matters. See Nett ex rel. Nett v. Bellucci, 269 F.3d 1, 5 (1st Cir. 2001);
Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1223 (10th Cir. 1991); Wayne v.
T.V.A., 730 F.2d 392, 401-02 (5th Cir. 1984), cert. denied, 469 U.S. 1159 (1985); Myers
v. Hayes International Corp., 701 F. Supp. 618, 625 (M. D. Tenn. 1988); Trinity Indus.
Leasing Co. v. Midwest Gas Storage, Inc., 33 F. Supp.3d 947, 974 (N.D. Ill. 2014) (citing
Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 n. 4 (Ind. 2012)).
This motion addresses those Plaintiffs, whose cases originated outside of this
court’s judicial district but were directly filed in this MDL forum (“foreign direct filed
cases”), pursuant to the court’s direct filing order. The specific issue raised in the present
motion is whether the court should apply the choice-of-law rules of the MDL forum
(Indiana) or the choice-of-law rules of the state where the case would have been brought
had it not been part of this MDL.
In 2011, the Southern District of Illinois addressed this issue and held that “the
best approach is to treat foreign direct filed cases as if they were transferred from the
judicial district sitting in the state where the case originated.” In re Yasmin, No. 3:09md-2100-DRH-PMF, MDL No. 2100, 2011 U.S. Dist. LEXIS 39820, at *18 (S.D. Ill.
April 11, 2011). The court adopts this approach, as it is in keeping with the rule that the
transferee court applies the law of the state in which the transferor court is located. Van
Dusen v. Barrack, 376 U.S. 612, 639 (1964) (“[W]here the defendants seek transfer, the
transferee district court must be obligated to apply the state law that would have applied
if there had been no change of venue. A change of venue under § 1404(a) generally
should be, with respect to state law, but a change of courtrooms.”). As noted by a sister
3

district court, “it would be an odd result to subject plaintiffs to [Indiana] law simply
because they took advantage of the direct filing procedure—a procedure that provides
benefits to all parties and preserves judicial resources.” In re Bausch & Lomb, Inc., Nos.
2:06-cv-2659-DCN and 2:06-cv-2716-DCN, MDL No. 1785, 2007 WL 3046682, at *3
(D.S.C. Oct. 11, 2007).
III.

Discussion
A.

Sales-Orr

Sales-Orr filed her Short Form Complaint1 on October 4, 2016. (In re: Cook
Medical, 1:16-cv-2636-RLY-TAB, Filing No. 1, Compl.). She was implanted with the
Cook Bird’s Nest Vena Cava Filter in March 2002 and the Cordis TrapEase Vena Cava
Filter in June 2003. (Id. ¶ 11). At the time of implantation, Sales-Orr was a resident of
Georgia, her surgery was performed in a Georgia hospital, and her alleged injury
occurred while she was a Georgia resident. (Id. ¶¶ 4, 5, 12). She is now a resident of
Tennessee. (Id. ¶ 6).
The parties disagree on whether Georgia or Tennessee choice-of-law rules apply.
Georgia employs the lex loci delecti approach to choice of law in tort cases, which
“requires application of the substantive law of the place where the tort or wrong
occurred.” McCarthy v. Yamaha Motor Mfg. Corp., 994 F. Supp. 2d 1329, 1332 (N.D.
Ga. 2014) (quoting Carroll Fulmer Logistics Corp. v. Hines, 710 S.E.2d 888, 890 (Ga.
Ct. App. 2011)). This is the place where the claimed injury was suffered, not the place

1

All Plaintiffs’ Short Form Complaints incorporate the MDL’s Master Complaint by reference.

4

where the tortious act was committed. Id. Tennessee applies the “most significant
relationship” approach of the Restatement (Second) of Conflict of Laws §§ 6, 145, 146,
and 175 (1971), under which the court applies the substantive law of the state that, “with
respect to that issue, has the most significant relationship to the occurrence and the
parties.” Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992) (quoting Restatement
(Second) Conflict of Laws (1971) § 145). Under either approach, a court addressing a
claim of injuries in Georgia from a Georgia surgery on a then-Georgia resident would
apply Georgia law. Thus, no conflict of law exists and no further analysis is necessary.
Georgia’s product liability statute incorporates a statute of repose, barring claims
for strict liability, negligence, or breach of warranty if the suit is not brought “within ten
years from the date of the first sale.” Ga. Code Ann. § 51-1-11; see also Powell v.
Harsco Corp., 433 S.E.2d 608, 609 (Ga. Ct. App. 1993) (“An action in products liability
may proceed on one or a combination of theories of negligence, strict liability, or breach
of warranty.”). The statute reads, in relevant part:
(b)(1) The manufacturer of any personal property sold as new property
directly or through a dealer or any other person shall be liable in tort,
irrespective of privity, to any natural person who may use, consume, or
reasonably be affected by the property and who suffers injury to his person
or property because the property when sold by the manufacturer was not
merchantable and reasonably suited to the use intended, and its condition
when sold is the proximate cause of the injury sustained.
(b)(2) No action shall be commenced pursuant to this subsection with respect
to an injury after ten years from the date of the first sale for use or
consumption of the personal property causing or otherwise bringing about
the injury.

5

(c) The limitation of paragraph (2) of subsection (b) of this Code section
regarding bringing an action within ten years from the date of the first sale
for use or consumption of personal property shall also apply to the
commencement of an action claiming negligence of a manufacturer as
the basis of liability, except an action . . . arising out of conduct which
manifests a willful, reckless, or wanton disregard for life or property.
Nothing contained in this subsection shall relieve a manufacturer from the
duty to warn of a danger arising from use of a product once that danger
becomes known to the manufacturer.
Ga. Code Ann. § 51-1-11(b)(2) & (c) (emphasis added).
Here, the Cook Defendants contend Sales-Orr’s tort claims are barred because she
filed her Short Form Complaint more than ten years after her first surgery—i.e., “the date
of first sale or use.” Sales-Orr does not agree. She argues her claims fall within the
exceptions noted in subsection (c)(2). Specifically, citing Chrysler Corp. v. Batten, 450
S.E.2d 208 (Ga. 1994), she argues her claim for failure to warn is outside the ambit of the
statute of repose. She also argues her defective design claim—in fact, all of her claims—
are subject to the statute’s exception for willful, reckless, or wanton disregard for
property or life.
The plain language of subsection 11(c) provides that the exception for willful,
reckless, or wanton conduct applies to claims for negligence, not strict liability. See Ivy
v. Ford Motor Co., 646 F.3d 769, 773 (11th Cir. 2011) (analyzing exception for negligent
design claim). Moreover, even though subsection (c) appears to exempt all failure to
warn claims from the ten-year period of repose, Georgia courts do not interpret it in that
manner. Instead, they interpret it to exempt only claims for negligent failure to warn, but
not claims for strict liability failure to warn. See Allison v. McGhan Medical Corp., 184
F.3d 1300, 1307 (11th Cir. 1999) (rejecting plaintiff’s reliance on Batten because the
6

claim in Batten was negligent failure to warn, not strict liability failure to warn); see also
Thomas v. Hubtex Maschinenbau GmbH & Co KG, No. 7:06-CV-81(HL), 2008 U.S.
Dist. LEXIS 75124, at *25 (M.D. Ga. Sept. 23, 2008) (holding that Georgia’s ten-year
statute of repose does not, as a matter of law, apply to negligent failure to warn claims,
but that the statute does apply to strict liability failure to warn claims). Therefore, SalesOrr’s strict liability claims set forth in Counts I and II and her claims for breach of
warranty in Counts V and VI must be dismissed.
With respect to Sales-Orr’s product liability claims sounding in negligence, she
alleges the Cook Defendants’ behavior was “willful, reckless” or constituted a “wanton
disregard for life or property” through incorporation of the Master Complaint. (In re
Cook Medical, 1:14-ml-2570-RLY-TAB, MDL No. 2570, Master Compl., Filing No. 213
¶¶ 186-194). Although these allegations are set forth under the Master Complaint’s claim
for punitive damages, the placement of those allegations is not fatal. The first line of
each count in the Master Complaint “repeat[s] and reallege[s] each and every allegation
of the Master Complaint as if set forth in full in this cause of action.” (See, e.g., id. ¶¶ 81,
185). The court therefore finds Sales-Orr’s negligent design claim may go forward.
And, for the reasons stated above, her negligent failure to warn claim may also go
forward. See Batten, 450 S.E.2d at 213.
Lastly, Sales-Orr brings a claim(s) for “Violations of Applicable Georgia State
Law Prohibiting Consumer Fraud and Unfair and Deceptive Trade Practices.” (Short
Form Complaint ¶ 14). The Cook Defendants have not cited a single case which holds
that a consumer fraud claim brought under Georgia’s Fair Business Practices Act or the
7

Uniform Deceptive Trade Practices Act is subject to the Georgia statute of repose.
Therefore, Sales-Orr’s consumer fraud claim (Count VII) shall remain.
B.

Michael David Fox

Fox filed his Short Form Complaint on January 30, 2017. (In re: Cook Medical,
1:17-cv-255-RLY-TAB, Filing No. 3, Compl.). He was implanted with the Günther
Tulip® Vena Cava Filter on October 31, 2006. (Id. ¶ 11). At the time of implantation,
Fox was a resident of Georgia, his surgery was performed in a Georgia hospital, his
claimed injury occurred while he was a Georgia resident, and he remains a Georgia
resident. (Id. ¶¶ 4, 5, 6, 12). Therefore, Georgia law applies.
Fox advances the same arguments as Sales-Orr. For the reasons explained above,
his strict products liability and breach of warranty claims must be dismissed, but his
claims sounding in negligence and consumer fraud remain.
C.

William Ivy, Timothy Henderson, and Betty Johnson

Ivy, Henderson, and Johnson filed their Short Form Complaints on December 8,
2016, February 3, 2017, and February 15, 2017, respectively. (In re: Cook Medical,
1:16-cv-3319-RLY-TAB, Filing No. 1, Compl.; In re: Cook Medical, 1:17-cv-368-RLYTAB, Filing No. 1, Compl.; In re: Cook Medical, 1:17-cv-488-RLY-TAB, Filing No. 1,
Compl.). Ivy, Henderson, and Johnson were implanted with the Günther Tulip® Vena
Cava Filter on September 3, 2004, May 14, 2006, and December 10, 2005, and allegedly
suffered injuries from the device while residing in Tennessee. (Id. ¶¶ 4, 12). All are
current residents of Tennessee. (Id. ¶ 6). Therefore, Tennessee law applies. McKinley,
830 S.W.2d at 59.
8

These Plaintiffs appear to concede that their strict liability failure to warn and
design defect claims are barred by the 10-year statute of repose. See Tenn. Code Ann. §
29-28-103(a). They argue, however, that the balance of their claims2 based on
negligence, negligence per se, and breach of express and implied warranty, survive. The
court does not agree. The Tennessee Products Liability Act of 1978 (“TPLA”) defines
“product liability action” accordingly:
“Product liability action” for purposes of this chapter shall include all actions
brought for or on account of personal injury, death or property damage
caused by or resulting from the manufacture, construction, design, formula,
preparation, assembly, testing, service, warning, instruction, marketing,
packaging or labeling of any product. It shall include, but not be limited to,
all actions based upon the following theories: strict liability in tort;
negligence; breach of warranty, express or implied; breach of or failure to
discharge a duty to warn or instruct, whether negligent, or innocent;
misrepresentation, concealment, or nondisclosure, whether negligent, or
innocent; or under any other substantive legal theory in tort or contract
whatsoever.
Tenn. Code Ann. 29-28-102(6). Applying the above definition to Plaintiffs’ claims based
upon the Cook Defendants’ Filter, the court finds all of their claims are subject to the
statute of repose.
Plaintiffs also argue that the application of the statute of repose violates the Equal
Protection Clause of the U.S. Constitution and the Class Legislation Clause of the
Tennessee State Constitution. U.S. Const. amend. XIV, § 1; Tenn. Const. art. XI, § 8.
Tennessee courts employ an equal protection analysis under Article XI, Section 8 of the
Tennessee Constitution that is nearly identical to the equal protection analysis under the

2

Unlike Ivy and Johnson, Henderson also brought a claim under Tennessee’s consumer
protection statute.

9

federal Constitution. See King-Bradwall Partnership v. Johnson Controls, Inc., 865
S.W.2d 18, 21 (Tenn. Ct. App. 1993) (“[T]he Supreme Court of Tennessee has adopted a
virtually identical equal protection standard or analysis under Article XI, Section 8 of the
Tennessee Constitution.”). Therefore, these claims will be addressed together.
The TPLA’s statute of repose reads, in relevant part:
(a) Any action against a manufacturer or seller of a product for injury to

person or property caused by its defective or unreasonably dangerous
condition . . . must be brought within ten (10) years from the date on which
the product was first purchased for use or consumption . . . .
(b) The foregoing limitation of actions shall not apply to any action resulting
from exposure to asbestos or to the human implantation of silicone gel breast
implants.
(c)(1) Any action against a manufacturer or seller for injury to a person
caused by a silicone gel breast implant must be brought within a period not
to exceed twenty-five (25) years from the date such product was implanted;
provided, that such action must be brought within four (4) years from the
date the plaintiff knew or should have known of the injury.
Tenn. Code Ann. § 29-28-103. According to Plaintiffs, there is no rational basis for the
distinctions between their claims and the exceptions found in the statute of repose for
asbestos-related and silicone gel implant health problems because the injuries from the
subject Filters also have long latency periods.
A rational basis “inquiry employs a relatively relaxed standard reflecting the
court’s awareness that the drawing of lines that create distinctions is peculiarly a
legislative task and an unavoidable one.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128,
1136 (6th Cir. 1986) (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
314 (1976)). Under this test, a classification in a statute does not violate equal protection
10

“‘if any state of facts reasonably may be conceived to justify it.’” Spence v. Miles Labs.,
Inc., 810 F. Supp. 952, 961-62 (E.D. Tenn. 1992) (quoting Dandridge v. Williams, 397
U.S. 471, 485 (1970)). If the classification has a rational basis, “it is not unconstitutional
merely because it results in some inequality.” Kochins, 799 F.2d at 1136.
Plaintiffs rely on Wyatt v. A-Best Prods. Co., 924 S.W.2d 98 (Tenn. Ct. App.
1995) for the proposition that a general exemption for all latent injury claims may more
effectively serve the Tennessee legislature’s intended purpose. In Wyatt, the defendants
argued that the asbestos exception unfairly singled out asbestos producers and sellers by
exempting asbestos claims from the statute of repose. The Tennessee Court of Appeals
rejected their argument: “[W]e cannot say that the General Assembly’s decision to
classify asbestos-related claims differently from other latent-injury claims is so patently
arbitrary as lacking any rational basis.” Id. at 106. Likewise here, the claimed similarity
between Plaintiffs’ Filter-based claims and the asbestos and silicone implant claims
excepted from Tennessee’s statute of repose does not establish that the statutory
classification has no rational basis or is completely arbitrary. Indeed, “‘[i]t is no
requirement of equal protection that all evils of the same genus be eradicated or none at
all.’” Id. (quoting Railway Express Agency v. People of New York, 336 U.S. 106, 110
(1948)). See also Kochins, 799 F.2d at 1139 (“[W]e think the statute’s exemption of
asbestos-related injuries has a rational basis if only because such injuries often take
considerably longer than ten years to manifest themselves.”); Spence, 810 F. Supp. at 963
(holding statute of repose does not violate equal protection by its different treatment of
injuries from asbestos exposure and exposure to HIV-contaminated blood products). The
11

court therefore finds the Tennessee legislature’s decision to except asbestos and silicone
implant claims from the TPLA’s statute of repose does not offend the Equal Protection
Clause or the Class Legislation Clause of the Tennessee State Constitution. Accordingly,
Ivy’s, Henderson’s, and Johnson’s claims must be dismissed.
D.

Emilie Apple

Apple filed her Short Form Complaint on November 30, 2016. (In re: Cook
Medical, 1:16-cv-3244-RLY-TAB, Filing No. 1, Compl.). She was implanted with the
Günther Tulip® Vena Cava Filter on September 7, 2001. (Id. ¶ 11). At the time of
implantation, Apple was a resident of Texas, her surgery was performed in a Texas
hospital, her claimed injury occurred while she was a Texas resident, and she remains a
Texas resident. (Id. ¶¶ 4, 5, 6, 12). Like Tennessee, Texas law applies the “most
significant relationship” test for purposes of choice-of-law analysis. Quicksilver Res. Inc.
v. Eagle Drilling LLC, 792 F. Supp. 2d 948, 951 (S.D. Texas 2011) (citing Gutierrez v.
Collins, 583 S.W.2d 312, 318 (Tex. 1979)). Pursuant to that standard, Texas law applies.
Under Texas law, a “products liability action” is defined as:
any action against a manufacturer or seller for recovery of damages or other
relief for harm allegedly caused by a defective product, whether the action is
based in strict tort liability, strict products liability, negligence,
misrepresentation, breach of express or implied warranty, or any other theory
or combination of theories, and whether the relief sought is recovery of
damages or any other legal or equitable relief, including a suit for: . . .
personal injury . . . .
Tex. Code Ann. § 160.12(a)(2). Texas law applies a 15-year statute of repose in product
liability cases, measured from the date the defendant sold the product. Tex. Code Ann. §
160.12(b) (“Except as provided by Subsections (c), (d), and (d-1), a claimant must
12

commence a products liability action against a manufacturer or seller of a product before
the end of 15 years after the date of the sale of the product by the defendant.”). The
statute provides an exception where a seller expressly warrants that a product will last
more than 15 years. Id. § 160.122(c) (“If a manufacturer or seller expressly warrants in
writing that the product has a useful safe life of longer than 15 years, a claimant must
commence a products liability action against that manufacturer or seller of the product
before the end of the number of years warranted after the date of the sale of the product
by that seller.”).
In support of her express warranty claim, Apple filed her own affidavit and the
Günther Tulip Vena Cava Filter Patient Guide. Relying on this evidence, she maintains
the Cook Defendants warranted the Filter as a permanent device in two ways. First,
immediately prior to implantation of the device, she “was told that the device was
permanent, with no long term side effects.” (See Filing No. 4440-2, Affidavit of Emilie
Apple ¶ 1). Second, the Patient Guide states that the Filter is often used as a permanently
implanted device and “is safe and effective as either a permanent or temporary device.”
(Filing No. 4440-3, Patient Guide at 6).
Typically, motions to dismiss or for judgment on the pleadings may not include
materials outside of the pleadings. McCready v. eBay, 453 F.3d 882, 891 (7th Cir. 2006);
Gottlieb v. Memorial Hosp. v. Sprinkmann Sons Corp., 474 F. Supp. 2d 942, 945 (N.D.
Ill. 2006) (citing Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,
163 F.3d 449, 453 n.5 (7th Cir. 1998)). A “narrow exception” to this general rule permits
“documents attached to a motion to dismiss [to be] considered part of the pleadings if
13

they are referred to in the plaintiff’s complaint and are central to [the plaintiff’s] claim.”
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.1998) (emphasis in original). Apple
did not assert these allegations, or refer to the Patient Guide, in her Short Form
Complaint or in the Master Complaint. In fact, the express warranty claim in the Master
Complaint alleges that the Cook Filters were not fit for their intended purpose and were
not of merchantable quality; it does not allege they were marketed as permanent devices.
(See Master Compl. ¶¶ 95-96). As this is a motion for judgment on the pleadings, the
omission of her specific warranty allegations is fatal. But even if she had included these
allegations in her Short Form Complaint, her claim would not survive.
Under Texas law, a plaintiff bringing the breach of an express warranty
concerning a product must allege and establish six elements:
(1) an express affirmation of fact or promise by the seller relating to the
goods;
(2) the affirmation of fact or promise became a part of the basis of the
bargain;
(3) the plaintiff relied upon said affirmation of fact or promise;
(4) the goods failed to comply with the affirmations of fact or promise;
(5) the plaintiff was injured by such failure of the product to comply with the
express warranty; and
(6) that such failure was the proximate cause of plaintiff’s injury.
Morris v. Adolph Coors Co., 735 S.W.2d 578, 587 (Tex. App. 1987) (citations omitted).
Here, with respect to the verbal warranty that Apple claims occurred immediately prior to
her surgery, she fails to identify who made the “express affirmation of fact or promise” to
14

her relating to the Filter. She cannot sustain an express warranty claim against the Cook
Defendants based on the allegation of a representation or promise by some unknown third
party.
With respect to the express warranty she claims is set forth in the Patient Guide,
the text at issue reads:
The Günther Tulip™ Vena Cava Filter is often used as a permanently
implanted device. Patients are able to lead a normal, active lifestyle, and
rarely have complications from having the filter implanted. The Gunther
Tulip™ Vena Cava may also be removed if your risk of pulmonary
embolism has diminished. However, there is a limited amount of time that
the filter can be implanted if it is to be safely removed. Please consult with
your physician to see if he or she plans to retrieve the filter or leave it in.
Remember, the Gunther Tulip™ Vena Cava Filter is safe and effective as
either a permanent or temporary device.
(Filing No. 4440-3, Patient Guide at 6). To the extent this could be construed as a
warranty lasting more than 15 years, Apple fails to establish the reliance element because
she does not claim that she actually read or relied on the Patient Guide’s language. Her
affidavit does not assert that she read the Guide before her surgery, much less that she
relied on the Guide rather than her own doctor’s recommendation. Accordingly, Apple
cannot rely on the express warranty exception to the Texas statute of repose.
IV.

Conclusion
For the reasons explained above, the Cook Defendants’ Motion for Judgment on

the Pleadings (Filing No. 4186) is GRANTED in part and DENIED in part.
Specifically, the court GRANTS the motion with respect to the strict products liability
and breach of warranty claims brought by Annette Sales-Orr and Michael Fox, but

15

DENIES the motion with respect to their negligence and consumer fraud claims.
Additionally, the court GRANTS the motion with respect to the claims brought by
William Ivy, Timothy Henderson, Betty Johnson, and Emilie Apple.

SO ORDERED this 31st day of May 2017.

Distributed Electronically to Registered Counsel of Record.

16