The settlement process for IVC filter claims is a negotiation between a victim who has been hurt by an implanted IVC filter and the device’s manufacturer. The goal of this process is to reach a mutual agreement about how much compensation the manufacturer should pay to the victim. The settlement process can be very different, depending on whether the IVC filter lawsuit was filed individually or as a part of an ongoing multidistrict litigation (MDL).
- 1. Settlement process for individual IVC filter lawsuits
- 2. Settlement process for IVC filter lawsuits in multidistrict litigation
- 3. Compensatory damages in IVC filter lawsuits
1. Settlement process for individual IVC filter lawsuits
IVC filter lawsuits pursued on an individual basis against filter manufacturers go through the same settlement process that is present in other personal injury cases.
After the lawsuit is filed, attorneys for the victim and the IVC filter company gather evidence about the incident. As more evidence is gathered, a clearer picture forms about what happened and the costs of the victim’s injuries. If the evidence tips in favor of the victim, the defendant will begin making offers to settle the case. If the victim accepts one of these settlement offers, they will receive the financial compensation and whatever else is included in the settlement package. In exchange, the victim will drop their case against the defendant.
Nearly all settlement offers include a provision that prohibits the victim from talking about the settlement. Another common provision included in settlement offers is that the defendant does not admit any wrongdoing.
Because accepted settlement offers cannot be discussed, only a small fraction of the settlements that happen are reported. Furthermore, those that are reported are rarely confirmed.
2. Settlement process for IVC filter lawsuits in multidistrict litigation
The settlement process for IVC filter lawsuits in multidistrict litigation is different. MDLs consist of thousands of individual lawsuits that have been consolidated for the pretrial portion of the case, including:
- Evidence gathering,
- Depositions, including of expert witnesses,
- Motions to dismiss,
- Motions to compel or to exclude evidence, and
- Summary judgment motions.
From these thousands of cases, several are chosen to go all the way through a jury trial. These are bellwether cases. The outcomes of bellwether trials can give attorneys for the plaintiffs and the defendants an idea of how a jury will react to the claims and the defenses that are raised, as well as how large of a verdict can be expected from a typical case in the MDL.
As more bellwether trials are resolved, the more likely both sides will come to an agreement on a settlement amount for the rest of the cases. Such a settlement would be a global settlement. It would end all of the cases in the MDL and create a pool of money which would then be disbursed to the victims in the MDL.
Once a global settlement has been reached, plaintiff attorneys representing the victims in the MDL have to disburse it to the appropriate people.
2.1 Matrix settlements or grid settlements can disburse settlements
One of the most common ways MDLs disburse the money from a global settlement to the victims in the lawsuit is by using a matrix settlement, also known as a grid settlement.
Attorneys for both the plaintiffs and the defendants agree to a plaintiff fact sheet, which victims are required to fill out in order to join a multidistrict litigation. This fact sheet aims to gather information about all of the elements of each plaintiff’s condition. In the context of IVC filters, this fact sheet would include:
- Name and contact information,
- Information about the plaintiff’s educational and professional backgrounds, including their salary,
- Information to identify the specific IVC filter that was implanted,
- Whether the IVC filter was retrieved, including if a retrieval attempt failed,
- Medical complications caused by the IVC filter, as well as supporting documentation from doctors connecting the medical complication to the filter,
- Whether there were any disclosures about the risks associated with the IVC filter,
- Medical history of the plaintiff, and
- Details about the plaintiff’s family and spouse.1
Responses to each question increase or decrease the amount of compensatory damages each plaintiff is presumed to take from a global settlement, based on a prescribed formula. This formula looks like a mathematical matrix or a grid, giving this process its name.
- Plaintiffs who have a spouse but no children would recover more than plaintiffs who are single, but less than those who have several children, as each victim’s expected compensatory damages for loss of consortium would be different,
- Plaintiffs who report a higher salary would recover more from the settlement pool because they would be presumed to have lost more wages, and
- Older plaintiffs would receive less from the settlement because their pain and suffering would not last as long as a younger victim.
In some cases, the formula is used to create an online calculator for victims who are considering legal action so they can estimate their recovery, should they decide to file a lawsuit.
Plaintiffs who believe they are not receiving enough in compensation can appeal their award. Judges in charge of MDLs handle this situation differently. Some use mediators, while others hear every appeal on their own.
3. Compensatory damages in IVC filter lawsuits
The goal of the settlement process in IVC filter claims is to provide each victim with a mutually agreeable amount of compensatory damages.
Compensatory damages are meant to compensate victims for their:
- Past and future medical expenses associated with injuries caused by their IVC filter implant,
- Wages lost and other professional repercussions from the injury,
- Reduced earning capacity,
- Loss of consortium suffered by their family, and
- Pain and suffering.
Importantly, settlements do not include punitive damages, which aim to punish defendants for especially wrongful conduct. In fact, settlements almost always involve a disclaimer by the defendant that the settlement is not an admission of wrongdoing.
- See e.g., In re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Products Liability Litigation, MDL 2570 (S.D. Ind., April 17, 2015) (order detailing party profile forms and fact sheets protocol).