The Seventh Circuit has affirmed the dismissal of a woman’s suit alleging that she was harmed by a flawed blood clot filter made by Indiana-based Cook Inc., ruling that her product liability claims came too late because she waited nearly 14 years to file.
A three-judge panel unanimously said that while under Indiana law, Valerie Cortez could have had as long as nearly 12 years after the filter was installed, on Dec. 14, 2006, to begin the product liability claim if the alleged injury had occurred near the 10-year mark of the original installation.
Given that installation date, “Cortez would have been required to initiate the action by Dec. 14, 2018, but the action in this case was not filed until more than 15 months later, on March 19, 2020.
Cortez had accused Cook of “fraudulent concealment” regarding the filter’s risks, saying Cook knew about the product’s defects but did not tell her about them, and that this meant that Indiana’s statute of repose was halted, or tolled, and she would have more time to sue. But the panel disagreed, saying the Indiana Supreme Court held in 2021 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.”
Cortez was a resident of Oregon when she received the filter as well as at the time of the injury and filing of the lawsuit, which meant her product liability claims would ordinarily be governed by Oregon’s 10-year statute of repose. However, Oregon law also states that a product liability action for personal injury or property may also be brought before “the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured,” which in this case was Indiana.
Indiana law says that product liability actions must be brought within 10 years of a product’s delivery, but that time can be extended by two years if the cause of action is discovered at least eight years, but less than 10 years, after the product’s delivery.
Cortez filed a short-form complaint in March 2020 incorporating the master complaint from multidistrict litigation against Cook, alleging that she was injured by Cook’s Günther Tulip vena cava filter, which was implanted to prevent pulmonary embolisms.
The complaint does not allege any specific injury but says that Cook “expressly and impliedly warranted” that the filter was a “permanent lifetime implant” and downplayed its risks. The MDL master complaint alleges that as a “direct and proximate result” of having the filter implanted, she and others have “suffered permanent and continuous injuries, pain and suffering, disability and impairment” as well as loss of the ability to “live a normal life” and monetary losses caused by past and future medical bills related to the filter’s defects.
In a brief filed in March 2021 as part of her appeal, she alleged that Cook “downplayed the risks associated with migration, perforation,” tilt and fracture, and continued to promote the filter as “safe and effective” even after the company “acquired additional knowledge and information confirming the defective and dangerous nature” of the device. She said the company did this in an attempt to conceal the defects of the filter, preventing her from discovering her cause of action and filing suit sooner.
In November 2020, the U.S. District Court for the Southern District of Indiana dismissed Cortez’s claims as untimely, ruling that the allegations did not establish fraudulent concealment and that, because they did not, the limitations period was not tolled.