Plaintiff’s Firm Pays the Price for Dismissing Bellwether Cases


On August 25, 2020, Judge Richard L. Young, S.D. Indiana, granted Cook Medical Inc.’s motion for sanctions against the plaintiff’s law firm in Burrage v. Cook Medical Inc. et al.

This case was one of many “no-injury” claims in the Cook IVC Filter MDL, meaning that the plaintiff did not claim any symptomatic injuries related to his IVC filter. It was selected as a bellwether case in August 2019 following a selection process that required substantial time and effort from the parties and the court. In June 2020, plaintiff’s counsel moved to voluntarily dismiss his claims with prejudice on the grounds that they have a “negative value” (meaning that the costs of litigating the case exceed the anticipated recovery), and Burrage never anticipated that the case would go to trial.

Cook moved for sanctions, arguing that plaintiff’s requested dismissal should be conditioned on his payment of all fees and costs incurred by Cook in preparing the case, including attorney’s fees. In support of its argument, Cook noted that plaintiff prejudicially “forced Cook to devote substantial time and money to working up a case that Plaintiff now claims he never anticipated would be tried.”

Judge Young agreed. Not only did he grant Cook’s motion and order costs, but he observed in a footnote that this was the second bellwether case this plaintiff’s firm had voluntarily dismissed.

In multidistrict litigation, where it’s unfortunately common for plaintiffs to dismiss a bellwether selection after the court and parties invest significant time and resources into choosing representative cases, this is a welcome development for defendants. The order – and the footnote – should send a powerful message to the plaintiffs’ bar about the possible consequences of dismissing bellwether cases without valid grounds.

[Disclosure/Disclaimer: The authors represent Cook Medical in the litigation described above.]

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About the Author: Christine R. M. Kain

As a member of Faegre Drinker’s nationally ranked product liability practice, Minneapolis partner Christine Kain defends pharmaceutical, medical device, food and beverage, and other manufacturers in class actions, mass torts, product liability and consumer fraud cases.

About the Author: J. Benjamin Broadhead

Ben Broadhead is a product liability associate residing in Faegre Drinker’s Indianapolis office. Ben focuses his practice on medical device litigation and mass torts.

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