Cuyler v. C R Bard Incorporated et al

Filing 27

ORDER Granting 26 Stipulation. IT IS FURTHER ORDERED that by 4/12/2021, the parties must file either dismissal documents or a joint status report about the status of settlement Signed by Magistrate Judge Brenda Weksler on 2/16/2021. (Copies have been distributed pursuant to the NEF - MR)

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Case 2:20-cv-01737-RFB-BNW Document 26 Filed 02/09/21 Page 1 of 5 27 02/16/21 4 1 5 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 GREENBERG TRAURIG, LLP 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 Email: 6 Counsel for Defendants 2 3 4 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 CAROLYN S. CUYLER, 11 Plaintiff, 12 13 14 15 CASE NO. 2:20-CV-01737-RFB-BNW vs. C. R. BARD INC., a Foreign Corporation; BARD PERIPHERAL VASCULAR INC., an Arizona Corporation; MCKESSON CORPORATION, a Corporation,; and DOES 1 through 100, inclusive STIPULATION AND [PROPOSED] ORDER TO STAY DISCOVERY AND ALL PRETRIAL DEADLINES (SECOND REQUEST) Defendants. 16 17 Plaintiff Carolyn S. Cuyler (“Plaintiff”) and Defendants C. R. Bard, Inc. and Bard Peripheral 18 Vascular, Inc. (“Defendants” and collectively with Plaintiff, the “Parties”), pursuant to Fed. R. Civ. 19 P. 26(c) and (d) and LR IA 6-2, respectfully request that this Court temporarily stay discovery and all 20 pretrial deadlines until April 12, 2021 while the Parties finalize settlement documents. In support 21 thereof, the Parties state as follows: 22 1. This case was part of the Multi-District Litigation proceeding In re: Bard IVC Filters 23 Product Liability Litigation, pending before Senior Judge David Campbell of the District of 24 Arizona. 25 2. Plaintiff alleges experiencing complications following the implantation of a Bard 26 Inferior Vena Cava (“IVC”) filter, a prescription medical device. She has asserted three strict 27 products liability counts (manufacturing defect, information defect (failure to warn) and design 28 defect), six negligence counts (design, manufacture, failure to recall/retrofit, failure to warn, ACTIVE 55206935v3 Case 2:20-cv-01737-RFB-BNW Document 26 Filed 02/09/21 Page 2 of 5 27 02/16/21 4 1 negligent misrepresentation and negligence per se), two breach of warranty counts (express and 2 implied), two counts sounding in fraud (fraudulent misrepresentation and fraudulent concealment), 3 and an unfair and deceptive trade practices count. 4 3. Defendants deny the allegations contained in the Complaint. 5 4. After four years, the completion of general issue discovery, and the conduct of three 6 bellwether trials, Judge Campbell ordered that cases, which have not settled or are not close to 7 settling, be transferred or remanded to the appropriate jurisdictions around the country for case- 8 specific discovery and trial. As a part of that process, he established a “track” system, wherein 9 certain cases were placed on tracks either to finalize settlement paperwork, continue settlement 10 11 negotiations, or be remanded or transferred. 5. This case was transferred to this Court on August 10, 2020 because at the time it was 12 not close to settling. But, since that date, the Parties have engaged in further settlement discussions 13 and have reached a settlement in principle. The Parties believe that a stay is necessary to conserve 14 their resources and attention so that they may finalize settlement documents. 15 6. Accordingly, the Parties request that this Court issue an order staying discovery and 16 pretrial deadlines until April 12, 2021 to allow the Parties time to finalize settlement 17 documents. This will prevent unnecessary expenditures of the Parties and conserve judicial 18 resources. 19 7. A district court has broad discretion over pretrial discovery rulings. Crawford-El v. 20 Britton, 523 U.S. 574, 598 (1998); accord, Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188-89 21 (11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning 22 Engineers, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also, Cook v. Kartridg Pak Co., 840 F.2d 602, 23 604 (8th Cir. 1988) (“A district court must be free to use and control pretrial procedure in furtherance 24 of the orderly administration of justice.”). 25 8. Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the scope 26 of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement negotiations do 27 not automatically excuse a party from its discovery obligations, the parties can seek a stay prior to the 28 cutoff date. Sofo v. Pan-American Life Ins. Co., 13 F.3d 239, 242 (7th Cir. 1994); see also, Wichita 2 ACTIVE 55206935v3 Case 2:20-cv-01737-RFB-BNW Document 26 Filed 02/09/21 Page 3 of 5 27 02/16/21 4 1 Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1993) (finding that a “trial 2 judge’s decision to curtail discovery is granted great deference,” and noting that the discovery had 3 been pushed back a number of times because of pending settlement negotiations). 4 9. Facilitating the efforts of parties to resolve their disputes weighs in favor of granting a 5 stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. 6 July 8, 2013), the parties requested a 60-day stay to facilitate ongoing settlement negotiations and 7 permit them to mediate global settlement. The Court granted the stay, finding the parties would be 8 prejudiced if required to move forward with discovery at that time and a stay would potentially 9 prevent an unnecessary complication in the case. Id. at *3. Here, the Parties have reached a 10 settlement in principle. 11 10. The Parties agree that the relief sought herein is necessary to handle the case in the 12 most economical fashion yet allow sufficient time to schedule and complete discovery if necessary, 13 consistent with the scheduling obligations of counsel. The relief sought in this Stipulation is not 14 being requested for delay, but so that justice may be done. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 ACTIVE 55206935v3 Case 2:20-cv-01737-RFB-BNW Document 26 Filed 02/09/21 Page 4 of 5 27 02/16/21 4 1 WHEREFORE, Plaintiff and Defendants respectfully request the Court’s approval of this 2 stipulation to stay discovery and all pretrial deadlines until April 12, 2021 to allow the Parties to 3 finalize settlement documents. 4 5 IT IS SO STIPULATED. 6 7 8 DATED this 9th day of February 2021. FEARS NACHAWATI, PLLC GREENBERG TRAURIG, LLC /s/ Eric W. Swanis Eric W. Swanis Nevada Bar No. 6840 Email: 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 Telephone: (702) 792-3773 14 /s/ Steven Schulte Steven Schulte (Admitted PHV) Texas Bar No. 24051306 Email: 5473 Blair Road Dallas, TX 75231 Telephone: (214) 890-0711 Facsimile: (214) 890-0712 15 Counsel for Plaintiff 9 10 11 12 13 Counsel for Defendants 16 17 18 19 IT IS SO ORDERED. ORDER IT IS ORDERED that the parties' stipulation is GRANTED. IT IS FURTHER Dated this ____ of _____________, 2021. ORDERED that by April 12, 2021, the parties must file either dismissal documents or a joint status report about the status of settlement 20 IT IS SO ORDERED ___________________________________ UNITED STATES DISTRICT JUDGE DATED: 12:47 pm, February 16, 2021 21 22 23 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4 ACTIVE 55206935v3

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