Product liability claims against Cook Medical untimely

Oregon woman who brought product liability claims in a short-form complaint against Indiana-based Cook Medical could not succeed on appeal because her claims were untimely, the 7th Circuit Court of Appeals has affirmed.

Valerie Cortez of Oregon brought a number of claims against Cook Incorporated, Cook Medical LLC and William Cook Europe APS, alleging that an inferior vena cava filter implanted in her body in December 2006 injured her. The vein filter was designed and manufactured by the defendants for the prevention of pulmonary embolisms.

Cortez’s action was part of the consolidated proceedings in In re: Cook Medical, Inc. Filters Marketing, Sales Practices and Product Liability Litigation, MDL No. 2570.

Cortez filed a short‐form complaint that incorporated counts from the master consolidated complaint for individual claims and alleged causes of action for product liability, negligence, breach of express and implied warranty and violations of Oregon’s Unlawful Trade Practices Act.

For its part, Cook moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as to the product liability claims, arguing Cortez’s claims were filed beyond the time period in the statute of repose of Oregon. Cortez countered that the Oregon statute incorporates Indiana law and that the complaint sufficiently alleged a right to such tolling under the doctrine of fraudulent concealment.

She also alleged that Cook knew its product was defective, that it actively concealed the significant risks associated with the filter and that the conduct constituted fraudulent concealment. Additionally, Cortez alleged the defendants continued to promote the filter as safe and effective even though inadequate clinical trials had been performed to support that safety or efficacy.

However, the U.S. District Court for the Southern District of Indiana held that Cortez’s complaint failed to sufficiently allege fraudulent concealment. It specifically pointed out that the complaint did not allege affirmative actions to prevent the discovery of a cause of action, did not allege that the filters were ever recalled, and did not allege that Cook communicated directly to Cortez in a misleading way about the risks associated with the filters or knew that she was injured and took steps to prevent the timely filing of an action.

Cortez appealed, arguing the court erred in its assessment of what constitutes fraudulent concealment.

In affirming in Valerie Cortez v. Cook Incorporated, et al., 20‐3434, the 7th Circuit noted that the Indiana Supreme Court had not yet addressed whether fraudulent concealment applied to statutes of repose at the time of oral argument in the case at hand.

“Since the supplemental briefing, however, the Indiana Supreme Court in (Blackford v. Welborn Clinic, 172 N.E.3d 1219 (Ind. 2021)) weighed in on the matter, and its holding is dispositive of this appeal,” Circuit Judge Ilana Rovner wrote. “It held that for a statute of repose, as opposed to a general statute of limitation, ‘fraudulent concealment may not extend the time in which to file a claim.’

“… The Indiana Supreme Court’s holding that the statute of repose is not subject to equitable tolling claims of fraudulent concealment is unequivocal. The court holds as much at four different points in its opinion,” Rovner wrote. “Its discussion regarding the possibility of tolling in rare cases presenting exceptions is hypothetical. Our task is to identify how the Indiana courts would interpret the law, and that means that we will take the Indiana Supreme Court at its word and give effect to its unequivocal holding.

“Because the product liability claims in this case are subject to a statute of repose, and fraudulent concealment cannot extend the time to file claims for such a statute, the claims in this case are untimely.”

This article was first published in The Indiana Lawyer.

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