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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ERIC W. SWANIS, ESQ.
Nevada Bar No. 6840
GREENBERG TRAURIG, LLP
10845 Griffith Peak Drive, Suite 600
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Counsel for Defendants

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CAROLYN S. CUYLER,

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Plaintiff,

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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.

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Plaintiff Carolyn S. Cuyler (“Plaintiff”) and Defendants C. R. Bard, Inc. and Bard Peripheral

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Vascular, Inc. (“Defendants” and collectively with Plaintiff, the “Parties”), pursuant to Fed. R. Civ.

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P. 26(c) and (d) and LR IA 6-2, respectfully request that this Court temporarily stay discovery and all

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pretrial deadlines until April 12, 2021 while the Parties finalize settlement documents. In support

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thereof, the Parties state as follows:

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1.

This case was part of the Multi-District Litigation proceeding In re: Bard IVC Filters

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Product Liability Litigation, pending before Senior Judge David Campbell of the District of

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Arizona.

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2.

Plaintiff alleges experiencing complications following the implantation of a Bard

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Inferior Vena Cava (“IVC”) filter, a prescription medical device. She has asserted three strict

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products liability counts (manufacturing defect, information defect (failure to warn) and design

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defect), six negligence counts (design, manufacture, failure to recall/retrofit, failure to warn,
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negligent misrepresentation and negligence per se), two breach of warranty counts (express and

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implied), two counts sounding in fraud (fraudulent misrepresentation and fraudulent concealment),

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and an unfair and deceptive trade practices count.

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3.

Defendants deny the allegations contained in the Complaint.

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4.

After four years, the completion of general issue discovery, and the conduct of three

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bellwether trials, Judge Campbell ordered that cases, which have not settled or are not close to

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settling, be transferred or remanded to the appropriate jurisdictions around the country for case-

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specific discovery and trial. As a part of that process, he established a “track” system, wherein

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certain cases were placed on tracks either to finalize settlement paperwork, continue settlement

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negotiations, or be remanded or transferred.
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This case was transferred to this Court on August 10, 2020 because at the time it was

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not close to settling. But, since that date, the Parties have engaged in further settlement discussions

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and have reached a settlement in principle. The Parties believe that a stay is necessary to conserve

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their resources and attention so that they may finalize settlement documents.

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Accordingly, the Parties request that this Court issue an order staying discovery and

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pretrial deadlines until April 12, 2021 to allow the Parties time to finalize settlement

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documents. This will prevent unnecessary expenditures of the Parties and conserve judicial

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resources.

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7.

A district court has broad discretion over pretrial discovery rulings. Crawford-El v.

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Britton, 523 U.S. 574, 598 (1998); accord, Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188-89

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(11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning

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Engineers, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also, Cook v. Kartridg Pak Co., 840 F.2d 602,

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604 (8th Cir. 1988) (“A district court must be free to use and control pretrial procedure in furtherance

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of the orderly administration of justice.”).

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8.

Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the scope

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of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement negotiations do

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not automatically excuse a party from its discovery obligations, the parties can seek a stay prior to the

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cutoff date. Sofo v. Pan-American Life Ins. Co., 13 F.3d 239, 242 (7th Cir. 1994); see also, Wichita
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Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1993) (finding that a “trial

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judge’s decision to curtail discovery is granted great deference,” and noting that the discovery had

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been pushed back a number of times because of pending settlement negotiations).

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9.

Facilitating the efforts of parties to resolve their disputes weighs in favor of granting a

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stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev.

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July 8, 2013), the parties requested a 60-day stay to facilitate ongoing settlement negotiations and

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permit them to mediate global settlement. The Court granted the stay, finding the parties would be

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prejudiced if required to move forward with discovery at that time and a stay would potentially

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prevent an unnecessary complication in the case. Id. at *3. Here, the Parties have reached a

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settlement in principle.

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The Parties agree that the relief sought herein is necessary to handle the case in the

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most economical fashion yet allow sufficient time to schedule and complete discovery if necessary,

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consistent with the scheduling obligations of counsel. The relief sought in this Stipulation is not

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being requested for delay, but so that justice may be done.

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WHEREFORE, Plaintiff and Defendants respectfully request the Court’s approval of this

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stipulation to stay discovery and all pretrial deadlines until April 12, 2021 to allow the Parties to

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finalize settlement documents.

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IT IS SO STIPULATED.

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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: [e-mail]
10845 Griffith Peak Drive, Suite 600
Las Vegas, Nevada 89135
Telephone: [phone]

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/s/ Steven Schulte
Steven Schulte
(Admitted PHV)
Texas Bar No. 24051306
Email: [e-mail]
5473 Blair Road
Dallas, TX 75231
Telephone: [phone]
Facsimile: [phone]

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Counsel for Plaintiff

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Counsel for Defendants

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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

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IT IS SO ORDERED
___________________________________
UNITED STATES DISTRICT JUDGE
DATED: 12:47 pm, February 16, 2021

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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