McBride v. C R Bard Incorporated et al

Filing 3

CASE MANAGEMENT ORDER NO. 42 (Tinlin Trial, SNF Cases, Duplicative Cases, Settlement Procedures and Remand or Transfer) ORDERED granting Motion (doc. 15738 in Lead MDL-15-2641) Dismissing this case as a Duplicate Complaints. See Order for Details Signed by Senior Judge David G Campbell on 3/21/19. (MAP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

IN RE: Bard IVC Filters Products
Liability Litigation,

11

No. MDL 15-02641-PHX-DGC
CASE MANAGEMENT ORDER NO. 42
(Tinlin Trial, SNF Cases, Duplicative Cases,
Settlement Procedures and Remand or
Transfer)

12
13
14
15

The Court held a case management conference with the parties on

16

March 18, 2019. Doc. 16093. The conference concerned issues raised in the parties’

17

joint status report (Doc. 15948) and other matters. On the basis of the conference, the

18

Court enters the following orders:

19
20

1.

Tinlin Trial (including change of pretrial conference date).
a.

Plaintiffs’ counsel provided information suggesting that Mrs. Tinlin

21

will not be able to travel to Phoenix for trial and asked that she be permitted to testify and

22

observe portions of the trial remotely. Doc. 15693. Defendants do not oppose the

23

request, but ask that various procedures be put in place to ensure that no prejudice results

24

from her remote testimony and observation. Doc. 15954. Plaintiffs are directed to work

25

with the Court’s technology staff and the federal district court in Green Bay, Wisconsin,

26

to arrange for Mrs. Tinlin’s video testimony during trial. Assuming adequate technical

27

arrangements can be made, the Court further concludes that (1) Mrs. Tinlin will be alone

28

in a room with a videographer and courtroom deputy clerk at the time of her testimony,

1

although counsel for both sides may be in the courthouse to deal with any issues that

2

arise; (2) the parties shall confer about exhibits to be used during her testimony, and a

3

complete set of marked exhibits will be provided for the clerk to place in front of Mrs.

4

Tinlin during her testimony; (3) Plaintiffs shall pay any costs associated with the remote

5

testimony; (4) the parties shall confer and propose a jury instruction that can be read

6

during trial to explain Mrs. Tinlin’s absence from trial and the reasons for her remote

7

testimony; and (5) Mrs. Tinlin may observe other portions of the trial from the remote

8

location, but will not appear via video while observing the proceedings. With these

9

safeguards in place, the Court finds that Mrs. Tinlin’s remote testimony satisfies the high

10

standard in Federal Rule of Civil Procedure 43(a) for remote testimony during trial.

11

Plaintiffs’ motion (Doc. 15693) is granted.

12

b.

Due to scheduling issues, the date for the final pretrial conference

13

will be changed from April 30 to April 29, 2019. The conference will begin at 10:00

14

a.m. on April 29, 2019.

15

c.

Plaintiffs have filed a motion to seal their unredacted summary

16

judgment materials.

17

documents). The motion fails to address the applicable compelling reasons standard. See

18

Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). The Court

19

denied a similar motion filed by Defendants. See Docs. 15072, 15175. Plaintiffs’ motion

20

to seal (Doc. 15695) is denied without prejudice.

21

March 29, 2019, to file new motions to seal that address the relevant legal standard.

Doc. 15695; see Docs. 15071, 15072 (sealed lodged proposed

The parties shall have until

22

2.

23

Case Management Order No. 41 directed Plaintiffs’ lead counsel to contact and

24

confer with attorneys representing SNF clients in this MDL proceeding, to inform these

25

attorneys that the Court is requiring them to organize into a Plaintiffs’ steering committee

26

for SNF cases and to assist in the management and efficient litigation of those cases, to

27

inform them that they must confer with defense counsel regarding an appropriate

28

schedule and procedures for preparing the cases for trial, including the five topics

Simon Nitinol Filter (“SNF”) Cases.

-2-

1

identified in the parties’ previous joint status report (Doc. 14870 at 3), and to be prepared

2

at the case management conference on March 18, 2019, to put in place the leadership

3

structure for the SNF cases. Doc. 15176 at 2. Once lead plaintiffs’ counsel were

4

identified for the SNF cases, the Court would require them to reach agreement on the

5

establishment of a common fund for the SNF cases, which the Court presumes would be

6

similar to the common fund established for the rest of this MDL. Id.; see Doc. 372

7

(CMO No. 6). The Court’s intent was to complete discovery and motion practice on the

8

SNF cases in the most efficient manner possible and, if necessary, hold one or two

9

bellwether trials on the SNF cases. Id. at 2-3.

10

Plaintiffs’ lead counsel report that they have contacted all known attorneys who

11

represent Plaintiffs in SNF cases transferred to or filed in this MDL, asking them to take

12

leadership roles in the SNF cases. Doc. 15948 at 2. That communication was followed

13

by further communications with some who expressed interest in taking on a leadership or

14

committee position. No lawyer has stepped forward to lead the SNF cases. One attorney

15

expressed a willingness to serve on a steering committee, but is not willing to serve as

16

lead counsel. See id. Plaintiffs’ lead counsel encouraged her to attend the hearing set for

17

March 18, 2019, but she did not. Plaintiffs’ lead counsel have also identified a few

18

additional attorneys who are willing to serve on a steering committee, but are similarly

19

reluctant to take on a lead counsel role.

20

Without Plaintiffs’ lawyers who are willing to assume leadership of the SNF

21

cases, those cases cannot be resolved expeditiously, the Court cannot manage the SNF-

22

case docket in this MDL, and Defendants will be prejudiced. The Court will afford the

23

SNF-case attorneys one more opportunity to organize a steering committee, designate

24

lead counsel, confer with defense counsel, and undertake litigation of the SNF cases. See

25

Doc. 15176 at 2-3. If those attorneys do not step forward and assume responsibility for

26

litigating their cases, the Court will dismiss the SNF cases for lack of prosecution and

27

failure to comply with the Court’s orders. See Doc. 15948 at 3; Fed. R. Civ. P. 41(b);

28

Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (“In determining whether to dismiss

-3-

1

an action for lack of prosecution, the district court is required to weigh several factors:

2

(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

3

manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

4

favoring disposition of cases on their merits and (5) the availability of less drastic

5

sanctions.”) (quotation marks and citation omitted).

6

Attorneys in SNF cases shall have until May 1, 2019, to (a) organize into a

7

Plaintiffs’ steering committee for SNF cases; (b) designate lead counsel for such cases;

8

(c) confer with defense counsel regarding an appropriate schedule and procedures for

9

preparing the cases for trial, including the five topics identified in the parties’ joint status

10

report (Doc. 14870 at 3); and (d) file a memorandum identifying the attorneys

11

recommended for the steering committee and lead counsel, explain why they are

12

qualified and able to litigate the SNF cases, and setting forth the proposed schedule for

13

this litigation. The Court will then schedule a hearing to appoint a steering committee

14

and lead counsel and set a schedule for completing discovery and motion practice in the

15

SNF cases.

16

Attorneys with SNF cases are warned that the Court will dismiss those cases

17

for lack of prosecution if they do not comply fully with this order. See Fed. R. Civ.

18

P. 41(b). Existing lead counsel are directed, within seven days of this order, to share

19

this order and the Court’s directive with all attorneys who have SNF cases in this

20

MDL.

21

3.

22

Defendants have filed a motion to dismiss duplicative complaints filed in this

23

MDL. Doc. 15738. The motion includes a list of seven plaintiffs who have filed more

24

than one complaint. Id. at 2.1 Before filing the motion, Defendants sent multiple letters

Duplicative Cases.

25
26
27
28

1

One of the plaintiffs, Pamela Smith, filed a motion to dismiss her second-filed
action (Case No. CV17-3089), which has been granted. Docs. 15860, 15966. Another
plaintiff not on the list, Leslie Sheffield, filed a stipulation to dismiss a duplicative
complaint, which has been granted. Docs. 15955, 15996 (Case No. CV17-4288).

-4-

1

notifying Plaintiffs’ Steering Committee and counsel for each individual plaintiff of the

2

duplicative actions.

3

complaints raise the same claims for the same individual as asserted in the initial

4

complaints, and requested that one of the cases be dismissed. See Doc. 15738 at 3.

5

Plaintiffs’ lead counsel in this MDL do not oppose dismissal of the duplicate complaints,

6

and counsel for the individual plaintiffs have not responded to Defendants’ letters and the

7

motion to dismiss (with the exceptions noted above).

See Doc. 15738-1.

The letters explained that the duplicate

8

The filing of duplicative complaints in this MDL is not appropriate.

9

Doc. 15738-2 at 3; see also M.M. v. Lafayette Sch. Dist. 681 F.3d 1082, 1091 (9th Cir.

10

2012) (“It is well established that a district court has broad discretion to control its own

11

docket, and that includes the power to dismiss duplicative claims.”). Defendants’ motion

12

(Doc. 15738) is granted and the following duplicate complaints are dismissed:

See

13
14

 Giambra, William, CV-17-03891 (Oct. 24, 2017);

15

 Holland, Betty, CV-17-03440 (Oct. 04, 2017);

16

 Mathis, Reginald, CV-17-04302 (Nov. 27, 2017);

17

 McBride, Bernardette, CV-17-00876 (Mar. 24, 2017);

18

 Pedersen, Charlene, CV-17-04308 (Nov. 27, 2017); and

19

 Pirl, Tracy, CV-17-03025 (Sept. 6, 2017).2

20

4.

21

The parties have suggested that the Court establish a schedule and procedure for

22

possible settlement of MDL cases after conclusion of the Tinlin trial. The Court will

23

accept the proposal, but advises the parties that it does not intend to delay remand or

24

transfer of MDL cases after a reasonable opportunity to settle.

Settlement Procedures and Remand or Transfer.

25
26
27
28

2

The initial complaints remain part of this MDL. See Giambra, CV-17-00191
(Jan. 20, 2017); Holland, CV-16-03147 (Sept. 16, 2016); Mathis, CV-17-03469 (Oct. 4,
2017); McBride, CV-16-01090 (Apr. 18, 2016); Pedersen, CV-17-00941 (Mar. 29,
2017); Pirl, CV-17-00899 (Mar. 27, 2017).

-5-

1

a.

By July 1, 2019, Plaintiffs’ lead counsel and defense counsel shall file with

2

the Court a joint memorandum identifying all cases in this MDL that fall within the two

3

tracks:

4
5

Track 1: Tentatively Resolved Cases. These include cases or groups of cases
that have been resolved in principle pursuant to an executed release or term sheet.

6

Track 2: Cases Near Settlement. These include cases or groups of cases that are

7

the subject of substantive settlement negotiations and as to which both sides agree that

8

discussions have progressed to the point where execution of a release or term sheet is

9

likely in the near future.

10

b.

By July 15, 2019, for all cases in this MDL that are not in Track 1 or

11

Track 2, the Court will recommend that cases transferred to the MDL be remanded by the

12

Judicial Panel on Multidistrict Litigation (“JPML”) to the transferor districts (see JPML

13

Rule 10.1(b)) and, if cases were directly filed in this MDL and did not originate in

14

Arizona (see Doc. 363 at 3), will transfer these cases to the proper district under

15

28 U.S.C. § 1404(a).

16

c.

On August 1, 2019, and every first of the month thereafter until this

17

MDL is concluded, the parties shall file a joint report on the settlement status of cases in

18

Track 1 and Track 2. Any case in either track may be removed from the track and from

19

this MDL upon counsel for either side concluding that further settlement efforts in the

20

case are not warranted. See Doc. 15629 at 3. The monthly report shall identify all cases

21

that have been so designated or otherwise are not included in Track 1 or Track 2, and the

22

Court will, by the 15th of the month, recommend remand by the JPML to the transferor

23

district or make a § 1404(a) transfer of the case to the proper district. The monthly report

24

shall state, with respect to each such case, (1) whether it was transferred by the JPML or

25

directly filed in this MDL, and (2) the district from which it was transferred by the JPML

26

or the district to which it should be transferred if it was directly filed in the MDL.

27
28

d.

All cases in Track 1 for which a stipulated dismissal has not been filed by

November 1, 2019, will be recommended to the JPML for remand or will be transferred

-6-

1

under § 1404(a). Upon a showing of very good cause, cases in Track 1 may be put on a

2

list for remand or transfer in an additional 30 days if a stipulated dismissal has not been

3

filed. Track 1 cases will not be continued in this MDL beyond the additional 30 days.

4

e.

All cases in Track 2 for which a release or term sheet has been executed by

5

November 1, 2019, will be continued in Track 2 for an additional six months, to

6

May 1, 2020, to allow time to complete settlement paperwork and file a stipulated

7

dismissal.

8
9
10
11

f.

All cases in Track 2 for which a release or term sheet has not been executed

by November 1, 2019, will be recommended to the JPML for remand or will be
transferred under § 1404(a).
g.

All cases in Track 2 with a release or term sheet executed by

12

November 1, 2019, but for which no stipulated dismissal has been filed by May 1, 2020,

13

will be recommended to the JPML for remand or will be transferred under § 1404(a).

14

h.

By July 1, 2019, the parties shall (1) update and lodge with the Court the

15

joint proposed report to be sent to the JPML with cases recommended for remand and to

16

districts receiving transfers under § 1404(a) (see Doc. 12534); (2) update and file the

17

stipulated designation of record to be sent with remanded and transferred cases (see

18

Doc. 13158); and (3) provide the Clerk of Court with a ZIP file containing the documents

19

identified in the updated designation of record (see Doc. 14973; JPML Rule 10.4).

20

i.

The parties may take videotaped trial testimony of key witnesses between

21

June 1 and September 1, 2019, to be provided to counsel who will try cases after remand

22

or transfer.

23

j.

The Court intends to set a closing date for new cases to be transferred to or

24

directly filed in this MDL. The Court will confer with the JPML and enter an order

25

identifying such a date.

26

Dated this 21st day of March, 2019.

27
28

-7-