Gilbert v. Lung et al

Filing 22

Certified Conditional Transfer ORDER. Signed by MDL Panel on 12/7/2016. (Copies have been distributed pursuant to the NEF - JM)

Case
A CERTIFIED TRUE COPY MDL No. 2570 Document 172 Filed 12/07/16 Page 1 of 3
Laura A. Briggs, Clerk
U.S. District Court
Southern District of Indiana

By

Deputy Clerk

FILED
UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

3:57 pm, Dec 07 2016
08,
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: Plaintiff moves under Panel Rule 7.1 to vacate our order that
conditionally transferred the action listed on Schedule A (Gilbert) to the Southern District of Indiana
for inclusion in MDL No. 2570. Defendants Cook Denmark International APS, Cook Group
Incorporated, Cook Med Institute, Cook Medical, Incorporated, Med Institute, Inc., Medical
Engineering and Development Institute, Inc., William Cook Europe APS (together, Cook), and
Courtney Lung oppose the motion.
In her motion to vacate, plaintiff principally argues that transfer should not take place because
there is a pending motion for remand to state court. We have held that a motion for remand alone
generally is an insufficient basis to vacate a conditional transfer order.1 Plaintiff can present her
motion for remand to the transferee judge. See, e.g., In re: Ivy, 901 F.2d 7, 9 (2d Cir. 1990); In re:
Prudential Ins. Co. of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 1347-48 (J.P.M.L. 2001).
After considering the argument of counsel, we find that Gilbert involves common questions
of fact with the actions previously 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. In our order centralizing this litigation, we held that the Southern District
of Indiana was an appropriate Section 1407 forum for actions sharing factual questions arising out
of allegations that defects in the design of Cook’s inferior vena cava filters (IVC filters) makes 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). Plaintiff does not dispute that Gilbert involves similar allegations that plaintiff
suffered injury when the IVC filter implanted in her body tilted and perforated her vena cava wall.

1

Panel Rule 2.1(d) expressly provides that 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 decides to do so.

Case MDL No. 2570 Document 172 Filed 12/07/16 Page 2 of 3

-2IT IS THEREFORE ORDERED that the action listed on Schedule A is 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
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

Case MDL No. 2570 Document 172 Filed 12/07/16 Page 3 of 3

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

SCHEDULE A

District of Nevada
GILBERT v. LUNG, ET AL., C.A. No. 2:16-01786
SD/IN Cause No. 1:16-cv-06049-RLY-TAB

MDL No. 2570