Jurisdiction – Multidistrict Litigation

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7^th Circuit Court of Appeals

Case Name: Victoria Looper, et al., v. Cook Incorporated, et al.,

Case No.: 20-3103

Officials: KANNE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Jurisdiction – Multidistrict Litigation

These two consolidated appeals raise issues about how the common practice of “direct filing” in multidistrict litigation may affect the choice of law in individual cases within the larger MDL. The Judicial Panel on Multidistrict Litigation asked Judge Richard L. Young of the Southern District of Indiana to oversee a multidistrict litigation docket to coordinate discovery and other pretrial proceedings in thousands of medical product-liability suits against Cook Incorporated and related entities alleging that Cook’s inferior vena cava (IVC) filters were defective. See 28 U.S.C. § 1407.

In these appeals, plaintiffs Victoria Looper and Sammie Lambert filed their lawsuits directly in the MDL court in Indiana rather than filing in the states where they lived and had the IVC filters implanted and then waiting for their cases to be “tagged” and transferred by the Judicial Panel on Multidistrict Litigation. Cook moved to dismiss both cases based on Indiana’s two-year statute of limitations for personal injury actions. Looper’s and Lambert’s home states (South Carolina and Mississippi) have three-year statutes. If the South Carolina and Mississippi statutes apply, their cases were timely. If the Indiana statute governs, as Cook argues and the district court held, Looper and Lambert filed their cases too late.

The appeals raise questions that have broad implications for MDL courts that endorse direct filing for the sake of efficiency. The dispute here shows the need for care and clarity up front in adopting direct filing. In these appeals, however, we do not need to reach sweeping conclusions on the subject. The unusual course of events in the district court—on this issue, first Cook and then the district court changed course 180 degrees in the midst of the MDL—showed that Cook implicitly consented to using choice-of-law rules for these plaintiffs as if they had filed in their home states. The district court might well have discretion to allow Cook to change positions prospectively, but it was not fair to allow Cook to change positions retroactively to dismiss these plaintiffs’ cases that had been timely filed under what the district court had accurately called the “law of the case.” We therefore reverse the judgments in favor of Cook in these two appeals and remand for further proceedings in the district court.

To explain our decision, we first lay out the governing legal principles for choice of law in diversity-jurisdiction cases that are transferred, and then the basics of multidistrict litigation and the practice of direct filing. We then turn to the unusual course of relevant events that persuades us that Cook consented to using home-state choice-of-law principles for these cases filed directly in the MDL venue.

Reversed and remanded
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Derek A Hawkins is Corporate Counsel, at Salesforce.