Gates v. C R Bard Incorporated et al

Filing 5

CERTIFIED TRANSFER ORDER transferring case to Western District of North Carolina. (Attachments: #1 MDL Certified Docket, #2 Case Management Order, #3 Motions in Limine Orders, #4 Deposition Designation Orders, #5 Discovery and Privilege Orders, #6 Master and Short-Form Pleadings, #7 Daubert Orders, #8 Miscellaneous Orders, #9 Case Management Orders, #10 Discovery Orders)(rth)

Case 2:15-md-02641-DGC Document 248 Filed 10/30/15 Page 1 of 8

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

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This Order Relates to: All Actions

MDL No. 2641
CASE MANAGEMENT
ORDER NO. 1

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I.

Plaintiffs’ Leadership Counsel Appointments

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The Court having considered all of the applications submitted and other relevant

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information, appoints the following plaintiffs’ counsel to leadership positions, as

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indicated and to be known as “Plaintiffs Leadership Counsel”:

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Plaintiffs’ Co-Lead/Liaison Counsel and State/Federal Liaison Counsel
Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Robert W. Boatman
Phoenix, AZ 85016
Ramon R. Lopez

Lopez McHugh, LLP
100 Bayview Cir., Ste. 5600
Newport Beach, CA 92660

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Plaintiffs’ Steering Committee (PSC)
Shannon Clark

Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Phoenix, AZ 85016

John A. Dalimonte

Karon & Dalimonte, LLP
85 Devonshire St., Ste. 1000
Boston MA, 02109

Troy A. Brenes

Brenes Law Group
16A Journey
Aliso Viejo, CA 92656

Ben C. Martin

Law Offices of Ben C. Martin
3219 McKinney Ave., Ste. 100
Dallas, TX 75204

Joseph R. Johnson

Babbitt & Johnson, PA
1641 Worthington Rd., #100
West Palm Beach, FL 33409

Julia Reed Zaic

Heaviside Reed Zaic
312 Broadway St., Ste. 203
Laguna Beach, CA 92651

Howard L. Nations

The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042

Russell W. Budd

Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219

Thomas P. Cartmell

Wagstaff & Cartmell, LLP
4740 Grand Ave., #300
Kansas City, MO 64112

Turner W. Branch

Branch Law Firm
2025 Rio Grande Blvd, NW
Albuquerque, NM 87104

Wendy R. Fleishman

Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

Donald A. Migliori

Motley Rice, LLC nd
321 South Main St., 2 Floor
Providence, RI 02903

Sheila M. Bossier

Freese & Goss, PLLC
1520 North State St.
Jackson, MS 39202

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Case 2:15-md-02641-DGC Document 248 Filed 10/30/15 Page 3 of 8

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Stuart L. Goldenberg

Goldenberg Law, PLLC
800 Lasalle Ave., #2150
Minneapolis, MN 55402

Christopher T. Kirchmer

Provost Umphrey Law Firm, LLP
490 Park St., P.O. Box 4905
Beaumont, TX 77704

Michael A. Kelly

Walkup, Melodia, Kelly & Schoenberger
650 California St.
San Francisco, CA 94108

Matthew McCarley

Fears Nachawati Law Firm
4925 Greenville Ave., Ste. 715
Dallas, TX 75206

Hadley L. Matarazzo

Faraci Lange, LLP
First Federal Plaza
28 East Main St., Ste. 1100
Rochester, NY 14614

Eric M. Terry

TorHoerman Law, LLC
101 W. Vandalia
Edwardsville, IL 62025

Joseph A. Osborne

Osborne & Associates Law Firm, PA
433 Plaza Real, Ste. 271
Boca Raton, FL 33432

Michael T. Gallagher

The Gallagher Law Firm, LLP
2905 Sackett Street
Houston, TX 77098

Nate Van Der Veer

Farris, Riley & Pitt LLP
The Financial Center
505 20th Street North
Birmingham, AL 35203

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II.

Responsibilities
A.

Procedural Matters
1.

As noted in this Court’s previous Order Setting Initial Case

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Management Conference dated September 15, 2015, the Clerk of this Court will maintain

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a master docket case file under the style “In Re: Bard IVC Filters Products Liability

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Litigation” and the identification “MDL No. 2641.” Lead/Liaison will be (a) the only

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attorneys permitted to file in the Master Docket as to all actions, and (b) the only

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attorneys receiving Notices of Electronic Filing for pleadings and orders filed in the

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Master Docket for all actions.

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Case 2:15-md-02641-DGC Document 248 Filed 10/30/15 Page 4 of 8

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2.

With regard to the Master Docket, Plaintiffs’ Lead/Liaison Counsel

shall:

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a.

Serve as the recipient for all Court orders.

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b.

Coordinate service and filings for all plaintiffs whether

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presently included or subsequently added.

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c.

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Maintain and distribute to co-counsel and to Defendants’
Counsel an up-to-date service list.

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d.

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Maintain responsibility for service upon all other attorneys
and parties as to filings made in the master docket.

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Specifically,

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distribute, to all other Plaintiffs’ counsel, pleadings orders,

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and motions by email, overnight courier service, or telecopier,

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within two days after receipt, unless such service has been

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waived, in writing, by a receiving counsel.

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e.

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Lead/Liaison

Counsel

shall

receive

and

Coordinate discovery and litigation with similar cases outside
of this Court's jurisdiction.

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3.

Lead/Liaison Counsel is only responsible for service with regard to

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filings in the Master Docket. With regard to case-specific filings, all attorneys of

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record in the relevant member action will receive a Notice of Electronic Filing

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from the Court.

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4.

New counsel for later-filed or later-transferred cases that become

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part of this MDL shall be responsible for checking the Master Docket for all

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orders previously entered that may have relevance to such new cases.

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B.

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In addition to the responsibilities identified above, Plaintiffs’ Lead/Liaison

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Responsibilities Specific to Lead/Liaison Counsel

Counsel shall:
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Coordinate the establishment of a document depository, real or

virtual, to be available to all participating plaintiffs’ counsel;

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2.

Maintain and make available to all participating plaintiffs’ counsel

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of record, at reasonable hours, a complete file of all documents served by or upon

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each party (except documents as may be available at a document depository);

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3.

Prepare agendas for court conferences and periodically report

regarding the status of the case; and

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Carry out such other duties as the Court may order.

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C.

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Plaintiffs Leadership Counsel shall have the following responsibilities:

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Responsibilities Applicable to all Plaintiffs’ Leadership Counsel

1.

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Discovery
a.

Initiate, coordinate, and conduct all pretrial discovery on

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behalf of plaintiffs in all actions which are consolidated with

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this MDL.

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b.

Develop and propose schedules for the commencement,

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execution, and completion of all discovery on behalf of all

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plaintiffs.

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c.

Cause to be issued in the name of all plaintiffs the necessary

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discovery requests, motions and subpoenas pertaining to any

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witnesses and documents needed to properly prepare for the

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pretrial of relevant issues found in the pleadings of this

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litigation.

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d.

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Conduct all discovery in a coordinated and consolidated
manner on behalf and for the benefit of all plaintiffs.

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Hearings and Meetings
a.

Call meetings of counsel for plaintiffs for any appropriate

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purpose, including coordinating responses to questions of

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other parties or of the Court. Initiate proposals, suggestions,

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schedules or joint briefs, and any other appropriate matters

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pertaining to pretrial proceedings.

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b.

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Examine witnesses and introduce evidence on behalf of
plaintiffs at hearings.

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c.

Act as spokespersons for all plaintiffs at pretrial proceedings

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and in response to any inquiries by the Court, subject to the

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right of any plaintiff’s counsel to present non-repetitive

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individual or different positions.

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3.

Miscellaneous
a.

Submit and argue all verbal and written motions presented to

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the Court on behalf of Plaintiff’s Leadership Counsel as well

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as oppose when necessary any motion submitted by

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defendants or other parties which involve matters within the

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sphere of the responsibilities of Plaintiffs’ Leadership

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Counsel.

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b.

Negotiate and enter into stipulations with defendants

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regarding this litigation. All stipulations entered into by

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Plaintiffs’

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administrative details such as scheduling, must be submitted

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for Court approval and will not be binding until ratified by the

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Court. Any attorney not in agreement with a non-

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administrative stipulation shall file with the Court a written

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objection within five (5) days after he/she knows or should

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have reasonably become of aware of the stipulation. Failure

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to object within the term allowed shall be deemed a waiver

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and the stipulation will automatically be binding on that

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party.

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c.

Leadership

Counsel,

except

for

strictly

Explore, develop, and pursue all settlement options pertaining

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to any claim or portion thereof of any case filed in this

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litigation.

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Case 2:15-md-02641-DGC Document 248 Filed 10/30/15 Page 7 of 8

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d.

Maintain adequate files of all pretrial matters, including

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establishing and maintaining a document or exhibit

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depository, in either real or virtual format, and having those

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documents available, under reasonable terms and conditions

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for examinations by all MDL plaintiffs or their attorneys.

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e.

Perform any task necessary and proper for Plaintiffs

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Leadership Counsel to accomplish its responsibilities as

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defined by the Court’s orders, including organizing

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subcommittees comprised of plaintiffs’ lawyers not on

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Plaintiffs’ Leadership Counsel.

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f.

Work

with

Lead/Liaison

Counsel

to

coordinate

the

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responsibilities of Plaintiffs’ Leadership Counsel meetings,

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keep minutes or transcripts of these meetings, appear at

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periodic Court-noticed status conferences, perform other

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necessary administrative or logistic functions of Plaintiffs’

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Leadership Counsel, and carry out any duty as ordered by the

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Court.

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g.

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Perform other such functions that may be expressly
authorized by further Court Orders.

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D.

Reimbursement of Costs Expended

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Plaintiffs’ Leadership Counsel shall be entitled to seek reimbursement for costs

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expended at the time and in a manner approved by the Court. Reimbursements will be

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governed by a further case management order to be proposed by Plaintiffs’ Leadership

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Counsel and entered by the Court.

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III.

Term of Appointments.

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Appointments to leadership positions in this order shall last for a term of one year

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from the date of this order unless terminated earlier by the Court. Thirty days before the

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expiration of this one-year term, Lead/Liaison Counsel shall file a memorandum

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Case 2:15-md-02641-DGC Document 248 Filed 10/30/15 Page 8 of 8

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notifying the Court of the need to make further appointments and making

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recommendations regarding those appointments.

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Dated this 30th day of October, 2015.

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Case 2:15-md-02641-DGC Document 249 Filed 10/30/15 Page 1 of 8

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

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This Order Relates to: All Actions

MDL No. 2641
CASE MANAGEMENT
ORDER NO. 2

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The Court held a lengthy case management conference with the parties on

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October 29, 2015. Before the conference, the parties submitted a proposed agenda and a

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memorandum setting forth positions of Plaintiffs and Defendants on various issues.

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Doc. 174. The Court entered an order with a more detailed agenda on October 19, 2015.

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Doc. 203. This order will generally follow the topics set forth in the Court’s agenda.

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I.

Identification and Selection of Parties’ Leadership.

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The Court has entered Case Management No. 1, which establishes Plaintiffs’

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Leadership Counsel. By November 6, 2015, Plaintiffs’ Lead/Liaison Counsel shall

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submit to the Court a proposed Case Management Order concerning: (a) the duties and

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authority of Plaintiffs’ Leadership Counsel in coordinating pretrial practice in this MDL;

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(b) the establishment and operation of a common fund for eventual payment and

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reimbursement of attorneys and their firms for common benefit work; (c) a procedure for

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auditing the common benefit work of Plaintiffs’ attorneys and their firms; (d) a procedure

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for making quarterly reports to the Court regarding the audits and the common benefit

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work performed by attorneys and their firms; (e) guidelines for eventual fee applications

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and

cost

reimbursement,

including

record-keeping

requirements,

time-keeping

Case 2:15-md-02641-DGC Document 249 Filed 10/30/15 Page 2 of 8

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requirements (see, e.g., Local Rule of Civil Procedure 54.2(e)), staffing limitations for

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various tasks, acceptable hourly rates, when travel time can be billed, reimbursable

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expenses (what is and is not reimbursable), and acceptable levels of expense

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reimbursement; (f) procedures or agreements designed to avoid the duplication of

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common benefit discovery already completed in some of the MDL cases; and (g) periodic

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status reports on coordination with state cases and other relevant matters.

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II.

Protective and Rule 502 Orders.

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By November 6, 2015, the parties shall jointly submit to the Court a proposed

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protective order, including Rule 502 provisions, for all cases in this MDL. If the order

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addresses the filing of confidential documents in court, it shall not say that such

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documents may be filed under seal. Instead, it should say that any party seeking to file a

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confidential document under seal shall comply with Local Rule of Civil Procedure 5.6.

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III.

ESI Protocol.

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By November 30, 2015, the parties shall jointly present to the Court an ESI

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Protocol addressing format of production, preservation, and other relevant ESI-discovery

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matters. If the parties are unable to reach agreement on all aspects of the ESI Protocol,

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they shall file a joint report setting forth the areas of agreement and disagreement and

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recommending a procedure for resolving disagreements.

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IV.

Discovery.

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A.

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By November 6, 2015, the parties shall propose to the Court profile forms to be

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completed by Plaintiffs and Defendants with respect to each new case added to this

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MDL. The intent will be to provide the parties with basic and relevant information about

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each new case. With the exception of bellwether cases, the Court generally will not

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oversee discovery relevant only to individual cases. It is anticipated that such discovery

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will be conducted in transferor districts after this MDL is completed.

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Discovery Relevant Only to Individual Cases.

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Case 2:15-md-02641-DGC Document 249 Filed 10/30/15 Page 3 of 8

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B.

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The parties will discuss whether agreement can be reached on the binding effect

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already-completed discovery will have in cases filed after the date of the discovery. If

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the parties are able to reach agreement, they shall jointly submit a stipulation to the Court

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by December 18, 2015. If the parties are unable to reach agreement, each side shall file a

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10-page memorandum setting forth its position with respect to the effect of the already-

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completed discovery by December 18, 2015. Each side may file a 5-page response

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memorandum by January 8, 2016.

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C.

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Binding Effect of Completed Discovery.

First-Phase Discovery.

By January 15, 2016, the parties shall complete a first phase of MDL discovery

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which includes the following:

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1.

Defendants shall provide an updated production of complaint

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(adverse event) files relating to the Recovery, G2, G2X, and G2 Express filters, and shall

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produce complaint (adverse event) files relating to the Eclipse, Meridian, and Denali

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filters.

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2.

Defendants shall produce updated versions of Bard’s Adverse Event

Tracking System for the various filters set forth immediately above.

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3.

By November 10, 2015, Defendants shall produce the documents

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described by defense counsel during the case management conference related to the FDA

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investigation and warning letter.

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4.

Plaintiffs may take a Rule 30(b)(6) deposition with respect to the

FDA investigation and warning letter.

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5.

Kay Fuller shall be deposed.

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D.

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The parties shall meet and confer with respect to the following discovery issues,

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and, by January 20, 2016, provide the Court with a joint report regarding their

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discussions. Areas of agreement and disagreement will be clearly identified, and each

Conferences Regarding Second Phase of Discovery.

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party’s position shall be set forth.

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procedures for resolving their disagreements.

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The parties shall propose, jointly if possible,

Updated collections and productions of previously searched

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“custodians” and ESI sources.

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duplicative discovery, but relevant information not previously searched for should be

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considered as a possible subject of discovery.

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2.

In discussing this topic, the parties should avoid

Production of ESI from custodians involved with later-generation

filter devices or employed at later time frames.

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3.

Further discovery related to the FDA inspection and warning letter.

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4.

ESI and documents that have been previously withheld, if any, as to

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Defendant’s later-generation devices, such as the Eclipse, Meridian, and Denali filters.

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5.

Discovery related to the Simon Nitinol filter.

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6.

Discovery regarding the Recovery Cone Removal System design,

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design changes, corrective actions, reasons why design changes were made, regulatory

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communications, and adverse event reports.

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7.

Custodial files and other discovery with respect to sales and

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marketing personnel.

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discovery focusing on higher-level sales and marketing personnel should be undertaken

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before discovery of lower-level personnel. The parties should also consider whether

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sales and marketing discovery should be postponed until case-specific discovery is

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undertaken with respect to bellwether cases.

In addressing this issue, the parties should consider whether

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8.

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this MDL or state-court cases.

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9.

Additional depositions of corporate and third party witnesses.

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10.

Rule 26 expert disclosures and expert depositions.

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11.

Discovery related to ESI preservation issues.

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Pending Rule 30(b)(6) deposition notices in cases consolidated in

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V.

Issues to be Briefed.

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A.

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Defendants shall file a motion for protective order with respect to the Lehmann

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Report, including evidentiary material, by November 30, 2015. Plaintiffs shall file a

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response, including evidentiary material, by December 18, 2015. Defendants shall file a

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reply by January 8, 2016. The parties’ briefs should address whether the Lehmann

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Report constitutes work product, whether an evidentiary hearing is needed, and what

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effect the Court’s ruling should have in cases where this issue has already been decided.

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B.

Lehmann Report.

Privilege Logs.

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By November 13, 2015, Defendants shall provide to Plaintiffs the current version

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of all privilege logs. By the same date, Defendants shall identify for Plaintiffs all

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documents that previously were listed on privilege logs but subsequently were produced

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to Plaintiffs. A chart showing privilege log control numbers and bates numbers of

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produced documents likely would be most helpful.

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Between November 13, 2015 and early January, 2016, the parties should engage in

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the informal privilege log exchange proposed by Defendants during the case management

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conference.

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agreement on privilege log issues. For purposes of the informal exchange, the parties

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should apply the work product law set forth in the magistrate judge’s decision in the

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Nevada case, unless they agree upon different legal standards. This paragraph will not

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preclude parties from arguing for a different legal standard if privilege log issues must be

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resolved by the Court.

The purpose of this exchange will be to see if the parties can reach

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By January 20, 2016, the parties shall provide the Court with a joint report on

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their privilege log efforts, identifying areas of agreement and disagreement, setting forth

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the parties’ positions on the disagreements, and proposing procedures for resolution of

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any remaining outstanding issues.

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Case 2:15-md-02641-DGC Document 249 Filed 10/30/15 Page 6 of 8

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VI.

Pleading and Filing Procedures.

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By November 30, 2015 the parties shall provide to the Court a master complaint

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drafted by Plaintiffs, a master answer drafted by Defendants, and templates of short-form

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complaints and answers agreed upon by the parties. The parties shall also submit to the

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Court a proposed case management order which provides that the master complaint and

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master answer will be filed in the master docket in this MDL proceeding; that new cases

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may be filed in the District of Arizona using the short-form complaint; that filing of a

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short-form complaint in the District of Arizona will not mean that the trial in that case

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will be held in Arizona, but instead will mean that the case will be transferred to the

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appropriate home district at the conclusion of this MDL; that Defendants may file a short-

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form answer in response to a short-form complaint; and that service of process in cases

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filed in the District of Arizona using the short-form complaint may be made by email on

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defense counsel.1

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The parties shall include in the jointly-submitted case management order a

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provision identifying cases in which the master complaint and master answer will not

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become the operative pleadings – where the existing complaints and answers will remain

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the operative pleadings. The master complaint and answer will become the operative

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pleadings in all other cases in this MDL.

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VII.

Handling of Advanced Cases.

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This MDL includes some cases in which discovery and motion practice has been

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completed. The Court does not intend to reopen already-decided Daubert motions or

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motions for summary judgment in these cases. The parties agree, however, that these

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cases should not be remanded to transferor courts at the present time. Rather, they will

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remain a part of the MDL and will be considered as possible bellwether cases in the

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future.

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The parties should address an additional issue in their November 30 filing. If
cases are filed in Arizona under such a case management order, what is the legal basis
upon which they later would be transferred to their home district? Because they would
not originally have been filed in another district, transfer under 28 U.S.C. § 1407(a)
presumably would not be available.
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Case 2:15-md-02641-DGC Document 249 Filed 10/30/15 Page 7 of 8

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VIII. Coordination with State Court Litigation.

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Plaintiffs’ Lead/Liaison Counsel shall, through the Plaintiffs’ Steering Committee,

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coordinate discovery and motion practice in this MDL proceeding with state court cases.

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As an immediate matter, Plaintiffs’ counsel shall coordinate discovery of Hill &

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Knowlton with state cases.

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IX.

Next Case Management Conference.

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The Court will hold a second case management conference on January 29, 2016

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at 9:00 a.m. The parties should file a joint report and proposed agenda by January 20,

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2016, identifying issues to be addressed at the conference.2

The purpose of the

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conference will be to address matters raised in the joint report and the various filings

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identified above. The Court will establish a second phase of fact discovery on the basis

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of the parties’ submissions and discussions at the case management conference. The

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Court will also confer with the parties about a schedule for expert disclosures,

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depositions, and Daubert motions. Because many of the cases in this MDL proceeding

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have involved no expert discovery, the Court concludes that full Rule 26 disclosures,

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followed by depositions and Daubert motions, should be conducted in this MDL. The

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effect of that discovery and motion practice in cases where experts have already been

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disclosed will be addressed later.

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X.

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Other Matters.
A.

Settlement Talks. After conferring with the parties, the Court concluded

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that it should not require global settlement talks at this stage of the litigation. The

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number and nature of cases to be added to this MDL is yet to be determined, and the

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scale of this litigation will be an important factor in settlement efforts. The Court will

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raise this issue with the parties in the future.

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B.

Discovery Disputes. The parties shall not file written discovery motions

without leave of Court. If a discovery dispute arises, the parties promptly shall contact

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Among other topics, the joint report should identify pending motions in all MDL
cases and set forth the parties’ recommendation as to what the Court should do with those
motions.
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the Court to request a telephone conference concerning the dispute. The Court will seek

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to resolve the dispute during the telephone conference, and may enter appropriate orders

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on the basis of the telephone conference. The Court may order written briefing if it does

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not resolve the dispute during the telephone conference.3 Parties shall not contact the

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Court concerning a discovery dispute without first seeking to resolve the matter through

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personal consultation and sincere effort as required by Local Rule of Civil Procedure

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7.2(j).

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C.

Briefing Requirements. All memoranda filed with the Court shall comply

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with Local Rule of Civil Procedure 7.1(b) requiring 13 point font in text and footnotes.

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Citations in support of any assertion in the text shall be included in the text, not in

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footnotes.

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D.

Rule 34 Responses. Rule 34 responses shall comply with the amended

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Rule 34 to become effective on December 1, 2015.

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Dated this 30th day of October, 2015.

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3

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The prohibition on “written discovery motions” includes any written materials
delivered or faxed to the Court, including hand-delivered correspondence with
attachments.
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Case 2:15-md-02641-DGC Document 314 Filed 12/01/15 Page 1 of 2

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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In re: Bard IVC Filters Products Liability
Litigation

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No. MDL 15-02641
PRETRIAL ORDER NO. 3

THIS ORDER
ACTIONS:

RELATES

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TO

ALL

(Non-Waiver Order Pursuant to Rule
502(d) of the Federal Rules of Evidence)

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14

WHEREAS:

15

(A)

The parties seek to resolve disputes related to entries on past and future

16

privilege logs of Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.

17

(collectively “Bard”) withheld pursuant to the attorney-client privilege, the work-product

18

doctrine, and/or other privileges;

19

(B)

In furtherance of this goal, Plaintiffs and Bard have entered into

20

negotiations, and counsel for the parties are meeting and conferring regularly regarding

21

Bard’s privilege logs;

22

(C)

As part of the meet and confer process, Bard is reviewing certain privilege

23

log entries identified by Plaintiffs. Bard may provide the Plaintiffs with a small number

24

of these identified items for inspection from time to time to further the meet and confer

25

discussions; and

26

(D)

As part of the meet and confer process, Bard may choose to withdraw

27

certain claims of attorney-client privilege, the work-product doctrine, and/or other

28

privilege(s), and produce the previously withheld items.

Case 2:15-md-02641-DGC Document 314 Filed 12/01/15 Page 2 of 2

1

Therefore, the parties have agreed, and

2

IT IS ORDERED:

3

1.

The parties’ discussions, Bard’s disclosure or production of the contents or

4

copies of the documents or items on its past and/or future privilege logs as part of the

5

meet and confer process shall not, pursuant to Federal Rule of Evidence 502(d),

6

constitute any waiver of any privilege and/or work-product protection in this MDL, or in

7

any other federal or state proceeding.

8
9
10

2.

This Order does not alter or amend Section VII, Paragraph 31 of the

Stipulated Protective Order (Doc. 269), entitled “Inadvertent Production.”
Dated this 1st day of December, 2015.

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Case 2:15-md-02641-DGC Document 363 Filed 12/17/15 Page 1 of 10

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2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 4

10
11

(Master Complaint, Master
Responsive Pleading, Use of Short
Form Complaint, and Waiver of
Service for Bard Defendants)

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15
16

The parties have submitted a Master Long Form Complaint and Jury Demand

17

(previously docketed as Doc. 303-1) and a Master Responsive Pleading (previously

18

docketed as Doc. 303-3). The Court has reviewed these proposed pleadings, finds them

19

sufficient, and directs the Clerk to file them as separate documents in the Court’s docket.1

20

The parties have also submitted a proposed Short Form Complaint, a copy of which is

21

attached to this order. The Court also finds this proposed pleading to be sufficient.

22

IT IS ORDERED:

23

All allegations pled in the Master Complaint and all responses pled in the Master

24

Responsive Pleading are deemed pled in any previously filed Complaint and Responsive

25

Pleading in this MDL proceeding, except as expressly noted below. They are also deemed

26

pled in any Short Form Complaint and Entry of Appearance filed after the entry of this

27
28

1

The reference to “Federal Rule of Evidence 8” on the first page of the Master Complaint
shall be deemed to be a reference to Federal Rule of Civil Procedure 8.

Case 2:15-md-02641-DGC Document 363 Filed 12/17/15 Page 2 of 10

1
2
3

order, except that the Master Complaint applies only against the Defendant or Defendants
identified in such future-filed Short Form Complaints.
The following cases will not be governed by the Master Complaint and Master

4

Responsive Pleading, but will continue to be governed by the complaints (including any

5

amended complaints) and answers filed in the various transferor courts prior to transfer:

6
7
8

Plaintiff

Original Jurisdiction

1. Cason, Pamela

GA – N.D. Ga.

9
10

1:12-cv-1288
2. Coker, Jennifer

GA – N.D. Ga.

11
12

1:13-cv-515
3. Conn, Charles

TX – S.D. Tex.

13
14

4:14-cv-298
4. Ebert, Melissa

PA – E.D. Pa.

15
16

5:12-cv-1253
5. Fox, Susan

TX – N.D. Tex.

17
18

3:14-cv-133
6. Henley, Angela

WI – E.D. Wis.

19
20

2:14-cv-59
7. Keen, Harry

PA – E.D. Pa.

21
22

5:13-cv-5361
8. Milton, Gary

GA – M.D. Ga.

23
24

5:14-cv-351
9. Mintz, Jessica

NY – E.D.N.Y.

25
26

2:14-v-4942
10. Ocasio, Denise

FL – M.D. Fla.

27

8:13-cv-1962

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Case 2:15-md-02641-DGC Document 363 Filed 12/17/15 Page 3 of 10

1
2

Plaintiff

Original Jurisdiction

11. Rivera (McClarty), Vicki

MI – E.D. Mich.

3
4

4:14-cv-13627
12. Smith, Erin

TX – E.D. Tex.

5
6

1:13-cv-633
13. Tillman, Lessie

FL – M.D. Fla.

7

3:13-cv-222

8
9

On or after December 28, 2015, any plaintiff whose case would be subject to

10

transfer to MDL 2641 may file his or her case directly in this Court by using the Short

11

Form Complaint. If such a case is filed in this Court without the use of the Short Form

12

Complaint, Plaintiffs’ Co-Lead Counsel shall promptly advise the filing party to file an

13

amended complaint using the Short Form Complaint. If the filing party fails to do so,

14

Plaintiffs’ Co-Lead Counsel shall promptly notify the Court.

15

Defendants are not required to file answers to Short Form or Amended Short Form

16

Complaints. An Entry of Appearance shall constitute a denial of all allegations in the

17

Short Form or Amended Short Form Complaints except as herein provided, and an

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25
26
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assertion of all defenses included in the Master Responsive Pleading. By filing an Entry
of Appearance in response to a Short Form Complaint, in lieu of an answer, Defendants
do not waive any defenses, including jurisdictional and service defenses.
Defendants shall have 60 days from the entry of this order to file any motion for
failure of the Master Complaint to state a claim upon which relief may be granted
pursuant to Rule 12(b)(6) and 12(h)(2), and Plaintiff’s shall have 30 days to respond.
Civil actions in this MDL were transferred to this Court by the Judicial Panel on
Multidistrict Litigation for coordinated or consolidated pretrial proceedings pursuant to
28 U.S.C. § 1407. Upon completion of the pretrial proceedings related to a civil action as
determined by this Court, the case shall be transferred pursuant to 28 U.S.C. § 1404(a) or
§ 1406(a) to the District Court identified in the Short Form Complaint, provided the

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1
2
3

parties choose not to waive Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26 (1998).

The fact that a case was filed directly in this District and MDL

proceeding shall not constitute a determination by this Court that jurisdiction or venue are

4

proper in this District, and shall not result in this Court being deemed the “transferor

5

court” for purposes of this MDL. In addition, filing a Short Form Complaint in this

6

District shall have no impact on the conflict of law rules to be applied to the case. Instead,

7

the law of the jurisdiction where the case is ultimately transferred will govern any conflict

8

of law. Prior to transfer, Defendants may object to the district specified in the Short Form

9

Complaint, based on venue or jurisdiction (including a lack of personal jurisdiction based

10

on Daimler AG v. Bauman, 134 S. Ct. 746 (2014)), and propose an alternative jurisdiction

11

for the Court’s consideration.

12

Subject to the conditions set forth in this order, Defendant C.R. Bard, Inc. and Bard

13

Peripheral Vascular, Inc. (collectively “Bard”) waive service of process in cases filed in

14

this Court using the Short Form Complaint and in which they are named as defendants

15

and one or more IVC filter products either manufactured or distributed by Bard is alleged

16

to be at issue. For such cases, Plaintiffs shall send a Short Form Complaint and a request

17
18
19
20
21

for waiver of service pursuant to the provisions of Fed. R. Civ. P. 4 to Richard B. North,
Jr. by email to [e-mail]; [e-mail]; and
[e-mail]. Counsel for Bard shall return the signed waiver
requests to the Court within the time permitted by Fed. R. Civ. P. 4. Plaintiffs submitting
a request for waiver shall not seek to hold Bard in default for failure to timely answer or
otherwise respond to a complaint in which service has been accomplished pursuant to the

22
23
24
25
26
27

terms of this order without first giving Bard written notice of the alleged default and ten
business days in which to cure any alleged default.
Prior to a Plaintiff’s attorney filing a Short Form Complaint in this Court, that
attorney must register for or already have a District of Arizona CM/ECF log-in name and
password. If the Plaintiff’s attorney does not already have a District of Arizona CM/ECF
log-in name and password, that attorney must file the Short Form Complaint in paper

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2
3
4

form with the Clerk of Court and simultaneously file an Application of Attorney for
Admission to Practice Pro Hac Vice pursuant to LRCiv 83.1(b)(2) (including all necessary
attachments and filing fee).
Dated this 17th day of December, 2015.

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Case 2:15-md-02641-DGC Document 365 Filed 12/17/15 Page 1 of 13

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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
No. MDL-15-02641-PHX-DGC
PRODUCTS LIABILITY LITIGATION
CASE MANAGEMENT ORDER
NO. 5
(Plaintiff and Defendant Profile Forms)

11
12
13

The parties have agreed upon the use of an abbreviated Plaintiff Profile Form (“PPF”)

14

(Exhibit 1) attached to this Order. Except as expressly noted herein, the PPF shall be

15

completed in each currently pending case, and in all cases that become part of this MDL by

16

virtue of being filed in, removed to, or transferred to this Court on or after the date of this

17

Order.

18

Each plaintiff in currently filed cases (except as noted herein) shall submit a completed

19

PPF to defendants within 60 days of the date of this Order. In cases that have been filed in,

20

removed to, or transferred to this MDL on or after the date of this Order, each plaintiff shall

21

submit a completed PPF to defendants within 60 days of filing the complaint. Each plaintiff

22

is required to provide defendants with a PPF that is substantially complete in all respects,

23

answering every question in the PPF, even if a plaintiff can answer the question in good faith

24

only by indicating “not applicable” or “unknown.” The PPF shall be signed by the plaintiff

25

under penalty of perjury. If a plaintiff is suing in a representative or derivative capacity, the

26

PPF shall be completed by the person with the legal authority to represent the estate or the

27

person under legal disability. Plaintiff spouses with a claim for loss of consortium shall also

28

sign the PPF, attesting that the responses made to the loss of consortium questions in the PPF

Case 2:15-md-02641-DGC Document 365 Filed 12/17/15 Page 2 of 13

1

are true and correct to the best of his or her knowledge, information and belief, formed after

2

due diligence and reasonable inquiry.

3

A completed PPF shall be considered interrogatory answers under Fed. R. Civ. P. 33

4

and responses to requests for production under Fed. R. Civ. P. 34, and will be governed by

5

the standards applicable to written discovery under Federal Rules 26 through 37. The

6

interrogatories and requests for production in the PPF shall be answered without objection as

7

to the question posed in the agreed upon PPF. This section does not prohibit a plaintiff from

8

withholding or redacting information from medical or other records provided with the PPF

9

based upon a recognized privilege. If information is withheld or redacted on the basis of

10

privilege, plaintiff shall provide defendants with a privilege log that complies with Fed. R.

11

Civ. P. 26(b)(5) simultaneously with the submission of the PPF.

12

If a plaintiff does not submit a PPF within the time specified in this Order, defendants

13

shall mail an overdue letter by e-mail and U.S. mail to Plaintiffs’ Co-Lead Counsel and the

14

plaintiffs’ individual representative counsel, stating that defendants may move to dismiss that

15

plaintiff’s case within 20 days of receipt of the letter. If no PPF is received within those 20

16

additional days, defendants may move immediately to dismiss that plaintiff’s case.

17

defendants receive a PPF that is not substantially complete, defendants’ counsel shall send a

18

deficiency letter within 14 days of receipt of a PPF, as applicable by e-mail and U.S. mail to

19

Plaintiffs’ Co-Lead Counsel and the plaintiffs’ individual representative counsel, identifying

20

the purported deficiencies. Plaintiff shall have 20 days from receipt of that letter to serve a

21

PPF that is substantially complete in all respects. This letter shall include sufficient detail for

22

the parties to meet and confer regarding the alleged deficiencies.

If

23

Within 45 days of receipt of a substantially complete PPF for an individual plaintiff,

24

the defendants shall provide the plaintiff with a completed Defendants’ Profile Form

25

(Exhibit 2) attached to this order.

26

The procedures outlined in this Order shall not apply to the following cases:

27

///

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///
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Case 2:15-md-02641-DGC Document 365 Filed 12/17/15 Page 3 of 13

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4

Plaintiff
1. Cason, Pamela

Original Jurisdiction
GA – N.D. Ga.
1:12-cv-1288
GA – N.D. Ga.
1:13-cv-515
TX – S.D. Tex.
4:14-cv-298
PA – E.D. Pa.
5:12-cv-1253
TX – N.D. Tex.
3:14-cv-133
WI – E.D. Wis.
2:14-cv-59
PA – E.D. Pa.
5:13-cv-5361
GA – M.D. Ga.
5:14-cv-351
NY – E.D.N.Y.
2:14-v-4942
FL – M.D. Fla.
8:13-cv-1962
MI – E.D. Mich.
4:14-cv-13627
TX – E.D. Tex.
1:13-cv-633
FL – M.D. Fla.
3:13-cv-222

2. Coker, Jennifer
3. Conn, Charles

5

4. Ebert, Melissa

6

5. Fox, Susan

7

6. Henley, Angela

8

7. Keen, Harry

9

8. Milton, Gary

10

9. Mintz, Jessica

11

10. Ocasio, Denise

12

11. Rivera (McClarty), Vicki

13

12. Smith, Erin

14

13. Tillman, Lessie

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23

The parties are relieved from preparing or exchanging profile forms in those particular cases.
On or before January 15, 2016, the parties shall submit proposed Plaintiffs’ and
Defendants’ Fact Sheets for the Court’s consideration. These forms will provide the parties
with more detailed information about each plaintiff and his or her case. Those forms will be
completed and exchanged only in cases designated for further discovery or for consideration
as a bellwether case. The court will issue a subsequent Order outlining the procedures
applicable to those more detailed forms.
Dated this 17th day of December, 2015.

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Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 1 of 35

1
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

MDL No. 2641
CASE MANAGEMENT ORDER
NO. 6

This Document Relates To All Actions
(RULES, POLICIES, PROCEDURES,
GUIDELINES RELATING TO
ESTABLISHING COMMON
BENEFIT FEE AND EXPENSE
FUND)

11
12
13
14
15

I.

SCOPE OF ORDER

16

This Order is entered to provide for the fair and equitable sharing among plaintiffs,

17

and their counsel, of the burden of services performed and expenses incurred by attorneys

18

acting for the common benefit of all plaintiffs in this complex litigation.

19

A.

20

The governing principles are derived from the United States Supreme Court’s

21

common benefit doctrine, as established in Trustees v. Greenough, 105 U.S. 527 (1881);

22

refined in, inter alia, Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885);

23

Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Mills v. Electric Auto-Lite Co.,

24

396 U.S. 375 (1970); Boeing Co. v. Van Gemert, 444 U.S. 472 (1980); and approved and

25
26
27
28

Governing Principles and the Common Benefit Doctrine

implemented in the MDL context, in inter alia, In re Air Crash Disaster at Florida
Everglades on December 29, 1972, 549 F.2d 1006, 1019-21 (5th Cir. 1977); and In re
MGM Grand Hotel Fire Litigation, 660 F.Supp. 522, 525-29 (D. Nev. 1987). Common
benefit work product includes all work performed for the benefit of all plaintiffs,

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 2 of 35

1

including pre-trial matters, discovery, trial preparation, a potential settlement process, and

2

all other work that advances this litigation to conclusion.

3

B.

4

This Order applies to all cases now pending, as well as to any case later filed in,

5

transferred to, or removed to this Court and treated as part of the coordinated proceeding

6

known as In re Bard IVC Filters Products Liability Litigation, No. MD-15-02641-PHX-

7

DGC. This Order further applies to each attorney who represents a plaintiff with a case

8
9
10
11
12

Application of this Order

now pending in or later filed in, transferred to, or removed to this Court, regardless of
whether the plaintiff’s attorney signs the “Participation Agreement” attached hereto as
Exhibit A, and/or the “Joint Prosecution And Confidentiality Agreement” (“Joint
Prosecution Agreement”) attached hereto as Exhibit B.
This Order shall also apply to any private lienholder who obtains reimbursement
from any plaintiff whose case is subject to this Order, because that lienholder is benefiting

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14
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16
17

from the common benefit work performed by Participating Counsel. Such entities shall be
subject to this Order regardless of execution of the Participation Agreement or the Joint
Prosecution Agreement, as they are seeking to obtain part of the recovery obtained by a
plaintiff who is subject to this Order and the jurisdiction of this Court. Counsel for any
private lienholder shall pay amounts consistent with the terms of Paragraph IV(B)(3) of

18

this Order into the Bard IVC Filters Fee Fund and the Bard IVC Filters Expense Fund (as

19

those terms are defined herein). Private lienholders’ counsel shall not be eligible to make

20

a claim to receive any distribution from the Common Benefit Fee Fund or the Common

21

Benefit Cost Fund.

22
23

C.

Participation Agreement (Exhibit A) And Joint Prosecution Agreement
(Exhibit B)

24

Exhibits A and B, attached hereto and incorporated herein, are voluntary

25

agreements between and among plaintiffs’ attorneys who have cases pending in the MDL

26

and/or in state court. Said agreements are private and cooperative agreements between

27

and among plaintiffs’ attorneys only (“Participating Counsel”); and not Defendants or

28

Defendants’ counsel. Participating Counsel shall automatically include all present and
2

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 3 of 35

1

future members of the “Plaintiffs’ Leadership Counsel” (as designated in CMO No. 1) by

2

virtue of their appointment by the Court as Plaintiffs’ Co-Lead/Liaison Counsel and

3

State/Federal Liaison Counsel (“Plaintiffs’ Co-Lead Counsel”), the Plaintiffs’ Steering

4

Committee (the “PSC”), State-Federal Liaisons, and any other plaintiff’s attorneys who

5

execute the Participation Agreement (Exhibit A hereto), and the Joint Prosecution and

6

Confidentiality Agreement (Exhibit B hereto). All plaintiffs’ attorneys who currently

7

have cases pending in this Court or in any state court shall, within 30 days of this Order,

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9
10
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12

designate whether or not they are a Participating Counsel or a Non-Participating Counsel
by signing the appropriate section of each Agreement. Any plaintiffs’ attorney who does
not yet have a Bard IVC Filters case filed in any federal or state court shall designate
whether or not they are a Participating Counsel or a Non-Participating Counsel by signing
the appropriate section of the Participation Agreement: (a) within 30 days of the date
their first case is filed in or otherwise docketed in this Court via direct filing, transfer or

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16
17

removal; or (b) within 30 days of the date their first case is filed in any state court, if that
lawyer intends to voluntarily become a Participating Counsel at the fee and expense
percentages set forth herein.

Failure to execute Participation Agreement and Joint

Prosecution Agreement indicating that an attorney will be a Participating Counsel within
the time frame set forth in this paragraph may result in higher percentages for common

18

benefit assessment as a result of such later participation. Any such higher percentages

19

must be approved by the Court.

20

Participating Counsel shall be entitled to receive all the common benefit work

21

product of those counsel who have also signed the Participation Agreement and Joint

22

Prosecution Agreement. Counsel who choose not to execute said agreements are not

23

entitled to receive common benefit work product and may be subject to an increased

24

assessment on all Bard IVC Filters cases in which they have a fee interest if they receive

25

common benefit work product or otherwise benefit by the work performed by

26

Participating Counsel.

27

The Court recognizes the jurisdictional rights and obligations of the state courts to

28

conduct their state court litigation as they so determine and that the state court litigations
3

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 4 of 35

1

may include counsel who are Participating Counsel. The Participation Agreement, Joint

2

Prosecution Agreement, and this Order shall not be cited by a party to either agreement in

3

any other court in support of a position that adversely impacts the jurisdictional rights and

4

obligations of the state courts and state court Participating Counsel.

5

II.

COMMON BENEFIT EXPENSES

6

A.

7

In order to be eligible for reimbursement, common benefit time and expenses must

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9
10
11
12

Qualified Time and Expenses Eligible for Reimbursement

meet the requirements of this section and the limitations set forth in the Participation
Agreement and Joint Prosecution and Confidentiality Agreement. Specifically, the time
and expenses must be: (a) for the common benefit; (b) appropriately authorized (as
defined in footnote 1 of the Participation Agreement); (c) timely submitted within the
defined limitations set forth in this Order; and (d) verified by a partner or shareholder in
the submitting firm.

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14
15
16
17

Time and expense submissions are to be made on the 15th day of each month,
beginning on January 15, 2016, at which date all qualifying time and expenses up to and
including December 31, 2015 must be submitted to Plaintiffs’ Co-Lead Counsel.
Thereafter, each submission should contain all time and expenses incurred during the
calendar month prior to the submission date (i.e., the February 15, 2016 submission

18

should include all time and expenses incurred during the month of January, 2016), all time

19

and expense submissions should be accompanied by contemporaneous records and

20

verified by a partner or shareholder in the submitting firm. Submissions of time and

21

expense made after the 15th day of the month following the month in which the time or

22

expense were incurred may be rejected.

23

Participation Agreement and the Joint Prosecution Agreement will be considered and

24

recognized for common benefit consideration. As to Plaintiffs’ Counsel who are not

25

among those described as Consortium Attorneys in the Joint Prosecution and

26

Confidentiality Agreement whose prior work product will be considered as common

27

benefit time and expenses predating the formation of this MDL, their and other

28

Participating Counsel’s time and expense for new work product will be considered for

Only time and expense as defined in the

4

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 5 of 35

1

common benefit fees and expenses commencing September 15, 2015, the date of the

2

issuance of this Court’s Order Setting Initial Case Management Conference. Moreover,

3

only that time and those expenses incurred for the common benefit of all cases, consistent

4

with the terms of this Order (e.g., activities associated with completing the items to

5

comply with CMO #1), shall be considered for common benefit reimbursement at the end

6

of the litigation.

7
8
9
10
11
12

Plaintiffs’ Counsel described as Consortium Attorneys in the Joint Prosecution
Agreement whose prior work product will be considered as common benefit time and
expenses predating the formation of this MDL shall submit all such common benefit time
and expenses on January 15, 2016.
B.

Shared and Held Common Benefit Expenses
1.

Shared Costs

Shared Costs are costs incurred for the common benefit of all plaintiffs. Shared
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14
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17

Costs will be paid out of a separate Bard IVC Filters Operating Expense Fund established
and administered by Plaintiffs’ Co-Lead Counsel and funded by all members of the PSC
and others as determined by Plaintiffs’ Co-Lead Counsel. All Shared Costs must be
approved by Plaintiffs’ Co-Lead Counsel prior to payment.

Shared Costs include:

(a) certain filing and service costs; (b) deposition, court reporter, and video technician

18

costs for non-case-specific depositions; (c) costs necessary for creation and maintenance

19

of a document depository, the operation and administration of the depository, the search,

20

categorization and organization of documents, depositions and evidence, and any

21

equipment required for the depository; (d) Plaintiffs’ Co-Lead Counsel administrative

22

matters (e.g., expenses for equipment, technology, courier services, telecopier, electronic

23

service, photocopy and printing, secretarial/temporary staff, etc.); (e) PSC group

24

administration matters such as meetings and conference calls; (f) accountant and

25

administrative consult and auditing fees; (g) generic expert witness and consultant fees

26

and expenses; (h) printing, copying, coding, scanning (out of house or extraordinary firm

27

cost); (i) research by outside third-party vendors/consultants/ attorneys; (j) translation

28

costs; (k) bank or financial institution charges; (l) certain investigative services,
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(m) special master and/or mediator charges, and (n) such other costs as the Court deems

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appropriate for the efficient prosecution of this MDL common to all plaintiffs.
2.

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Held Costs

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Held Costs are those that will be carried by each Participating Counsel in MDL

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2641. Held Costs are those that do not fall into any of the above categories of shared

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costs, but are incurred for the benefit of all plaintiffs. Held costs can also include

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unreimbursed, but authorized, shared costs. No specific client-related costs shall be

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considered as Held Costs, unless the case is determined by Plaintiffs’ Co-Lead Counsel to
be a “common benefit case,” e.g., certain bellwether cases as determined by Plaintiffs’
Co-Lead Counsel.
C.

Authorization and Submission

The Participation Agreement sets forth the guidelines for authorizing and
submitting expenses for the common benefit.

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reimbursement of Held Expenses shall follow those guidelines.
D.

Limitations on Expenses
1.

Travel Limitations

Except in extraordinary circumstances approved in advance by Plaintiffs’ Co-Lead
Counsel, all travel reimbursements are subject to the following limitations:
i.

Airfare: Only the price of a coach seat for a reasonable
itinerary will be reimbursed. Business/First Class Airfare will
not be fully reimbursed, except for international flights, which
requires prior approval by Plaintiffs’ Co-Lead Counsel in
order to be considered for reimbursement. Use of a private
aircraft will not be reimbursed. If Business/First Class Airfare
is used on domestic flights, then the difference between the
Business/First Class Airfare must be shown on the travel
reimbursement form, and only the coach fare will be
reimbursed.

ii.

Hotel: Hotel room charges for the average available room rate
of a business hotel, including the Hyatt, Westin, and Marriott
hotels, in the city in which the stay occurred will be
reimbursed. Luxury hotels will not be fully reimbursed but
will be reimbursed at the average available rate of a business
hotel.

iii.

Meals:
Meal expenses, including gratuities, must be
reasonable, and shall not exceed $75 per day per person.

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All Participating Counsel seeking

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There will be no reimbursement for alcoholic beverages, minibar items, or movies.

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iv.

Cash Expenses: Miscellaneous cash expenses for which
receipts generally are not available (tips, luggage handling,
pay telephone, etc.) will be reimbursed up to $50.00 per trip,
as long as the expenses are properly itemized.

v.

Rental Automobiles: Luxury automobile rentals will not be
fully reimbursed, unless only luxury automobiles were
available. If luxury automobiles are selected when non-luxury
vehicles are available, then the difference between the luxury
and non-luxury vehicle rates must be shown on the travel
reimbursement form, and only the non-luxury rate may be
claimed, unless such larger-sized vehicle is needed to
accommodate several counsel, or equipment.

vi.

Mileage: Mileage claims must be documented by stating
origination point, destination, total actual miles for each trip,
and the rate per mile paid by the member’s firm. The
maximum allowable rate will be the maximum rate allowed by
the IRS (currently 50.5¢ per mile).

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2.

Non-Travel Limitations

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i.

Shipping, Courier, and Delivery Charges: All claimed
expenses must be documented with bills showing the sender,
origin of the package, recipient, and destination of the
package.

ii.

Postage Charges: A contemporaneous postage log or other
supporting documentation must be maintained and submitted.
Postage charges are to be reported at actual cost.

iii.

Telefax Charges:
Contemporaneous records should be
maintained and submitted showing faxes sent and received.
The per-fax charge shall not exceed $1.00 per page.

iv.

In-House Photocopy: A contemporaneous photocopy log or
other supporting documentation must be maintained and
submitted. The maximum copy charge is 15¢ per page.

v.

Computerized Research – Lexis/Westlaw: Claims for Lexis or
Westlaw, and other computerized legal research expenses,
should be in the exact amount charged to or allocated by the
firm for these research services.

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E.

Verification

The forms detailing expenses shall be certified by a senior partner in each firm
attesting to the accuracy of the submissions.

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Attorneys shall keep receipts for all

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expenses. Credit card receipts are an appropriate form of verification if accompanied by a

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declaration from counsel that the expense was incurred and paid for the common benefit.

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III.

COMMON BENEFIT WORK

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A.

Qualified Common Benefit Work Eligible for Reimbursement

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Only Participating Counsel are eligible for reimbursement for time and efforts

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expended for the common benefit.

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reimbursement for time and efforts expended for common benefit work if said time and

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Participating Counsel shall be eligible for

efforts are: (a) for the common benefit; (b) appropriately authorized (as described in
footnote 1 of the Participation Agreement); (c) timely submitted; and (d) verified by a
partner or shareholder in the submitting firm. Common benefit work and expenses of the
Consortium Attorneys (as defined in the Joint Prosecution Agreement) will be evaluated
pursuant to the same criteria, scrutiny, audit and guidelines as common benefit work and
expenses are evaluated and qualified for work commencing September 15, 2015. In

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evaluating whether to pay for common benefit work and expenses incurred by Consortium
Attorneys before September 15, 2015, the Court will consider the extent to which the
work and expenses truly benefited plaintiffs who joined the MDL, the extent to which the
work and expenses were duplicated by work and expenses incurred after September 15,
2015 and submitted for reimbursement, the extent to which Consortium Attorneys

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received compensation for the work and expenses from settlements completed before

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September 15, 2015, and other relevant factors.

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B.

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As the litigation progresses and common benefit work product continues to be

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generated, Plaintiffs’ Co-Lead Counsel may assign Participating Counsel with common

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benefit work; common benefit work shall include only work specifically assigned.

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Examples of common benefit work include, but are not limited to, legal research and

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briefing, authorized court appearances, special projects, meetings, conference calls,

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maintenance and working in the depository; review and document coding; preparing,

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responding to, and dealing with common-benefit discovery; expert retention and

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development authorized by Co-Lead Counsel; preparing for and conducting authorized

Compensable Common Benefit Work Defined

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depositions of Defendants, third-party witnesses, and experts; and activities associated

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with preparation for trial and the trial of any cases designated as “common benefit trials”

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by Plaintiffs’ Co-Lead Counsel.

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C.

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All time must be authorized and accurately and contemporaneously maintained.

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Time shall be kept according to the guidelines set forth in the Participation Agreement and

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approved by Plaintiffs’ Co-Lead Counsel.

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IV.

Authorization and Time Keeping

PLAINTIFFS’ LITIGATION FEE AND EXPENSE FUNDS
A.

Establishing the Fee and Expense Funds

At an appropriate time, Plaintiffs’ Co-Lead Counsel shall ask the Court to direct
that two interest-bearing accounts be established to receive and disburse funds as provided
in this Order (the “Funds”). The first fund shall be designated the “Bard IVC Filters Fee
Fund” and the second fund shall be designated the “Bard IVC Filters Expense Fund.”

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These funds will be held subject to the direction of this Court.
By subsequent Order of this Court, the Court will appoint a qualified certified
public accountant (the “CPA”) to serve as escrow agent over the Funds and to keep
detailed records of all deposits and withdrawals and to prepare tax returns and other tax
filings in connection with the Funds. Such subsequent Order shall specify the hourly rates

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to be charged by the CPA and for the CPA’s assistants, who shall be utilized where

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appropriate to control costs. The CPA shall submit quarterly detailed bills to the Court

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and to Plaintiffs’ Co-Lead Counsel. Upon approval by the Court, the CPA’s bills shall be

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paid from the Bard IVC Filters Expense Fund and shall be considered a shared cost. The

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Plaintiffs’ Liaison Counsel shall provide a copy of this Order and later orders to the CPA.

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B.

Payments into the Fee and Expense Funds
1.

General Standards

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All plaintiffs and their attorneys who are subject to this Order and who agree to

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settle, compromise, dismiss, or reduce the amount of a claim or, with or without trial,

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recover a judgment for monetary damages or other monetary relief, including

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compensatory and punitive damages, with respect to Bard IVC Filters claims are subject

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to an assessment of the gross monetary recovery, as provided herein.

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2.

Gross Monetary Recovery

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Gross monetary recovery includes any and all amounts paid to plaintiffs (either

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directly or through plaintiffs’ counsel) by Defendants through a settlement or pursuant to

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a judgment. In measuring the “gross monetary recovery,” the parties are to (a) exclude

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court costs that are to be paid by the Defendants; (b) include any payments to be made by

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the Defendants on an intervention asserted by third-parties, such as to physicians,
hospitals, or other healthcare providers in subrogation related to treatment of a plaintiff,
and any governmental liens or obligations (e.g., Medicare/Medicaid); and (c) include the
present value of any fixed and certain payments to be made in the future. The assessment
shall apply to all of the cases of the plaintiffs’ attorneys who are subject to this Order,
whether as sole counsel or co-counsel, including cases pending in the MDL, pending in

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state court, unfiled, or tolled.
3.

Assessment Amount

The assessment amount is 8%, which includes 6% for attorneys’ fees and 2% for
expenses. The assessment represents a holdback (In re Zyprexa Prods. Liab. Litig., 267
F.Supp.2d 256 (E.D.N.Y. 2006)) and shall not be altered. However, if any counsel fails to

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timely execute the Participation Agreement and Joint Prosecution and Confidentiality

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Agreement, such counsel and members of his/her firm may be subject to an increased

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assessment. Moreover, if a Non-Participating Counsel receives common benefit work

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product or otherwise benefits from the common benefit work product, such counsel and

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the cases in which she/he has a fee interest may be subject to an increased assessment.

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4.

Defendants’ Obligations

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Upon learning of a case being filed in any state court, Defendants’ Counsel

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promptly shall forward a copy of the state-court complaint to Plaintiffs’ Co-Lead Counsel

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so that Plaintiffs’ Co-Lead Counsel can notify the state-court attorneys of this Order and

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offer them the opportunity to become Participating Counsel.

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The Plaintiffs’ Co-Lead Counsel shall provide the Defendants’ Counsel, the CPA,

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and the Court or its designee with a list of cases and/or counsel who have entered into

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written agreements with the PSC by executing the Participation Agreement and Joint

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Prosecution and Confidentiality Agreement. This same list shall be made available to all

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plaintiffs’ counsel with cases in this MDL, as well as any other plaintiffs’ counsel who

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signs the Participation Agreement and Joint Prosecution and Confidentiality Agreement,

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upon request. In the event there is a dispute as to whether a case should be on the list,

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Plaintiffs’ Co-Lead Counsel shall seek to resolve the matter with the particular plaintiff’s
counsel informally, and if that is unsuccessful, upon motion to the Court.
Defendants and their counsel shall not distribute any settlement proceeds to any
plaintiff (or anyone on behalf of a plaintiff, including plaintiff’s counsel) until after
(1) Defendants’ counsel notifies Plaintiffs’ Co-Lead Counsel in writing of the existence of
a settlement and the name of the individual plaintiff and plaintiff’s attorney (without

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disclosing the amount of the settlement), and (2) Plaintiffs’ Co-Lead Counsel has advised
Defendants’ counsel in writing whether or not the individual plaintiff’s attorney’s cases
are subject to an assessment and the amount (stated as a percentage of the recovery) of the
assessment pursuant to this Order.

Plaintiffs’ Co-Lead Counsel shall share this

information only with each other and shall otherwise keep this information confidential.

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For cases subject to an assessment, Defendants are directed to withhold an assessment

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from any and all amounts paid to plaintiffs and their counsel and to pay the assessment

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directly into the Funds as a credit against the settlement or judgment. No orders of

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dismissal of any plaintiff’s claim, subject to this Order, shall be entered unless

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accompanied by a certificate of plaintiff’s and defendants’ counsel that the assessment, if

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applicable, will be withheld and will be deposited into the Funds at the same time the

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settlement proceeds are paid to settling counsel. If, for any reason, the assessment is not

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or has not been so withheld, the plaintiff and his/her counsel are jointly responsible for

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paying the assessment into the Fund promptly.

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Plaintiffs’ Co-Lead Counsel shall keep track of settlements and deposits into the

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Funds for those settlements. Plaintiffs’ Co-Lead Counsel shall provide the Court monthly
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reports showing the aggregate of the monthly deposits, disbursements, interest earned,

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financial institution charges, if any, and current balance. If necessary, Plaintiffs’ Co-Lead

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Counsel may request that the Court require Defendants to disclose to the Court the

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amounts of the settlements reached with each plaintiff in order to confirm that appropriate

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assessments have been deposited in the Funds.

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V.

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DISTRIBUTIONS
A.

Court Approval

The amounts deposited into the Bard IVC Filters Fee Fund and the Bard IVC
Filters Expense Fund shall be available for distribution to Participating Counsel who have
performed professional services or incurred expenses for the common benefit in
accordance with this Order, the Participation Agreement, and the Joint Prosecution
Agreement. No amounts will be disbursed without review and approval by the Court, or
such other mechanism as the Court may order.

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distributed only upon Order of this Court.

Specifically, such sums shall be

This Court retains jurisdiction over any

common benefit award or distribution.
B.

Application for Distribution

Each Participating Counsel who does common benefit work has the right to present
their claim(s) for compensation and/or reimbursement prior to any distribution approved

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by this Court. Any Counsel who does not sign the Participation Agreement and Joint

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Prosecution Agreement shall not be eligible to receive common benefit payments for any

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work performed or expenses incurred.

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At the appropriate time, this Court shall request that Plaintiffs’ Co-Lead Counsel

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make recommendations to this Court for distributions to Participating Counsel who have

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performed common benefit work. Plaintiffs’ Co-Lead Counsel shall employ the services

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of an agreed-upon independent expert, and after approval of the Court, will serve in an

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advisory and consulting capacity to Co-Lead Counsel and the PSC to periodically audit

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the time submissions of Participating Counsel whose consultation and advice regarding

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billing practices will be shared with Participating Counsel so as to ensure the appropriate

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methods, content, and substance of time submissions consistent with the guidelines set
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forth in this Order. Plaintiffs’ Co-Lead Counsel, in consultation with the independent

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third-party expert, shall determine the most fair and efficient manner by which to evaluate

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all of the time and expense submissions in making its recommendation to this Court. This

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Court will give due consideration to the recommendation of the Plaintiffs’ Co-Lead

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Counsel in conjunction with such expert consultation, advice and recommendations.

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To the extent that the billing records of any Participating Counsel or any plaintiff’s

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attorney are shared with Plaintiffs’ Co-Lead Counsel, the CPA, the retained independent

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expert, or the Court (subject to appropriate protections when filing), they retain their
status as work product materials and are not discoverable by Defendants.
VI.

Plaintiffs’ Co-Lead Counsel shall provide the Court with quarterly reports on the

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QUARTERLY REPORTS TO THE COURT.

fees and expenses submitted by various plaintiffs’ counsel for eventual reimbursement
from the common fund in this case. The reports shall be organized so the Court can

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review the attorneys’ fees incurred for various categories of work in the case, and the
attorneys who incurred them, and so the Court can review the expenses submitted for
reimbursement. The first report shall be provided at the end of the second full week of
May, 2016, and shall cover through March of 2016, with successive reports to be
submitted at the end of the second full week of August, November, February, and May
thereafter, continuing until the conclusion of this case and covering the preceding quarter.

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Dated this 17th day of December, 2015.

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.

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Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 14 of 35

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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MDL No. 2641

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

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This Document Relates To All Actions

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EXHIBIT A TO CMO ___
(Common Benefit Participation Agreement)

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THIS AGREEMENT is made this

day of

, 2015, by and

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between the Plaintiffs’ Leadership Counsel appointed by the United States District Court

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for District of Arizona in MDL 2641 and [Name of the Firm Executing the Agreement]

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(the “Participating Counsel”).
WHEREAS, the United States District Court District of Arizona has appointed
(LIST ALL HERE FROM CMO 1) Plaintiffs’ Leadership Counsel (consisting of Co-Lead
Counsel, State-Federal Liaison Counsel, and the Plaintiffs’ Steering Committee or
“PSC”), to facilitate the conduct of pretrial proceedings in the federal actions relating to
the use, marketing, and sales of Bard IVC Filters; and
WHEREAS, the Plaintiffs’ Leadership Counsel, in association with other attorneys
working for the common benefit of plaintiffs, have developed or are in the process of
developing work product that will be valuable in all proceedings and benefit all plaintiffs
alleging injury caused by use of the medical device Bard IVC Filters (“Common Benefit
Work Product”); and

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WHEREAS, the Participating Counsel are desirous of acquiring the Common

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Benefit Work Product and establishing an amicable, working relationship with the

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Plaintiffs’ Leadership Counsel for the mutual benefit of their clients;
NOW THEREFORE, in consideration of the covenants and promises contained

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herein, and intending to be legally bound hereby, the parties agree as follows:

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I.

SCOPE OF AGREEMENT
A.

Purpose

This Participation Agreement is a private cooperative agreement between
plaintiffs’ attorneys to share Common Benefit Work Product pursuant to the Order
Establishing Common Benefit Fee and Expense Fund and this Participation Agreement.
Any plaintiffs’ attorney who executes this Agreement (“Participating Counsel”) is entitled
to receive the Common Benefit Work Product created by those attorneys who have also

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executed, or have been deemed to have executed, the Participation Agreement and Joint
Prosecution Agreement, regardless of the venue in which the attorney’s cases are pending.
B.

Rights and Obligations of Participating Counsel

Upon execution of this Participation Agreement and the Joint Prosecution and
Confidentiality Agreement, the Plaintiffs’ Leadership Counsel will provide Participating

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Counsel access to the Common Benefit Work Product, including access to the document

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depository, and full access and availability of work product within the private, secure and

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confidential plaintiffs-only website. Participating Counsel agrees that all cases in which

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Participating Counsel has a fee interest, including unfiled cases, tolled cases, and/or cases

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filed in state and/or federal court, are subject to the terms of this Participation Agreement.

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Participating Counsel shall produce a list that correctly sets forth the name of each client

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represented by Participating Counsel and/or in which Participating Counsel has an interest

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in the attorney fee, regardless of what that interest is, who has filed a civil action arising

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from the use, marketing, and/or sale of Bard IVC Filters. Such list shall include the court

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and docket number of each such case. Participating Counsel shall also produce a list that

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contains the name of each client represented by Participating Counsel and/or in which
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Participating Counsel has an interest in the attorney fee, regardless of what that interest is,

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who has not yet filed a civil action but who has a claim against Defendants arising from

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the use, marketing, and/or sale of Bard IVC Filters. Participating Counsel shall

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supplement the lists on a quarterly basis and provide the lists to Plaintiffs’ Co-Lead

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Counsel. The initial list shall be provided within 15 days of signing this Agreement and

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must be supplemented every 90 days thereafter.

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II.

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AGREEMENT TO PAY AN ASSESSMENT ON GROSS RECOVERY
Subject to the terms of this Agreement, the provisions set forth below, and the

terms of CMO, all plaintiffs and their attorneys who agree to settle, compromise, dismiss,
or reduce the amount of a claim, or with or without trial, recover a judgment for monetary
damages or other monetary relief, including compensatory and punitive damages, for any
Bard IVC Filters claims are subject to an assessment of the Gross Monetary Recovery, as
provided herein.

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A.

Assessment Amount

The assessment amount shall be eight (8) percent of the Gross Monetary Recovery
in each case, six (6) percent for common benefit attorneys’ fees and two (2) percent for
common benefit expenses, and represents a holdback. (See In re Zyprexa Prods. Liab.
Litig., 267 F.Supp.2d 256 (E.D.N.Y. 2006)). By entering this Participation Agreement,

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the undersigned understands and avers to not move, join, or otherwise support a motion

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that seeks a common benefit fee assessment in excess of 6%, nor a motion that seeks

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common benefit costs in excess of 2%, unless it should become apparent that fees in

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excess of 6% or costs and expenses in excess of 2% are required to reasonably and

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adequately advance the litigation.

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However, to obtain the benefit of this assessment amount, all plaintiffs’ counsel

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with a case pending in this MDL or in any state court shall execute this Participation

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Agreement within 30 days of the entry of the Common Benefit Order. Any plaintiffs’

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attorney who does not yet have a Bard IVC Filters case filed in any state or federal court

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shall execute this Participation Agreement (a) within 30 days of the date their first case is

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filed in or otherwise docketed in this Court via transfer or removal, or (b) within 30 days
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of the date their first case is filed in any state court. Failure to execute the Participation

2

Agreement within these time frames may result in an increased assessment as determined

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by Plaintiffs’ Co- Lead counsel and subject to the Court’s approval.

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B.

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Gross Monetary Recovery includes any and all amounts paid to plaintiffs (directly

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or through plaintiffs’ counsel) by Defendants through a settlement or pursuant to a

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judgment. In measuring the Gross Monetary Recovery, the parties are to (a) exclude court

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costs that are to be paid by the Defendant; (b) include any payments to be made by the
defendant on an intervention asserted by third-parties, such as to physicians, hospitals, or
other healthcare providers in subrogation related to treatment of a plaintiff, and any
governmental liens or obligations (e.g., Medicare/Medicaid); and (c) include the present
value of any fixed and certain payments to be made in the future.
C.

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Gross Monetary Recovery Defined

Covered Cases

The assessment amount set forth above and in the related Order shall apply to all
cases now pending or later filed in, transferred to, or removed to this Court and treated as
part of the coordinated proceeding known as In re: Bard IVC Filters Products Liability
Litigation, MDL 2641, regardless of whether the plaintiff’s attorney is either Participating
or Non-Participating Counsel. Counsel who sign this Participation Agreement further

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agree that the assessment shall apply to all un-filed cases, tolled cases, and/or cases filed

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in state court in which they have a fee interest, regardless of the size of that fee interest.

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Non-Participating Counsel are not required to pay an assessment on state court

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cases or on un-filed cases.

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Agreement are not entitled to receive Common Benefit Work Product, and may be subject

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to an increased assessment on all Bard IVC Filters cases in which they have a fee interest

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if they receive any Common Benefit Work Product or otherwise benefit from the work

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product created by Plaintiffs’ Leadership Counsel and other Participating Counsel

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working with the MDL.

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Common Benefit payments for any work performed or expenses incurred.

However, counsel who do not sign the Participation

Non-Participating Counsel shall not be eligible to receive

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D.

2

With respect to each client represented in connection with Bard IVC Filters related

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claims that are filed or pending in any Federal court, are un-filed, or are subject to a

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tolling agreement, consistent with I.B. and I.C. of the associated Case Management Order

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Establishing Common Benefit Fee and Expense Fund (Case Management Order #___),

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each Participating Counsel shall agree to have Defendants deposit or cause to be deposited

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in the Bard IVC Filters Fee and Expense Funds established by the District Court in the

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Attorney Fee Lien

MDL a percentage of the gross amount recovered by each such client that is equal to the
assessment amount. In the event Defendants do not deposit the assessed percentage into
the Funds, Plaintiff and Plaintiff’s Participating Counsel shall deposit or cause to be
deposited in the Bard IVC Filters Fee and Expense Funds established by the District Court
in the MDL a percentage of the gross amount recovered by each such client that is equal
to the assessment amount. Participating Counsel, on behalf of themselves, their affiliated

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counsel, and their clients, hereby grant and convey to Plaintiffs’ Leadership Counsel a lien
upon and/or a security interest in any fee generated as a result of any recovery by any
client who they represent in connection with any Bard IVC Filters-induced injury and
Bard IVC Filters marketing and sales practices, to the full extent permitted by law, in
order to secure payment in accordance with the provisions of this Agreement.

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Participating Counsel will undertake all actions and execute all documents that are

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reasonably necessary to effectuate and/or perfect this lien and/or security interest.

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E.

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Both the Plaintiffs’ Leadership Counsel and Participating Counsel recognize the

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importance of individual cases and the relationship between case-specific clients and their

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attorneys. Regardless of the type of settlement or conclusion eventually made in either

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state or federal cases, Plaintiffs’ Leadership Counsel will recommend to this Court that

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appropriate consideration will be given to individual case contracts between attorneys and

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their clients.

Attorney-Client Contracts

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III.

COMMON BENEFIT EXPENSES

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A.

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In order to be eligible for reimbursement of common benefit expenses, said

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expenses must be: (a) for the common benefit; (b) appropriately authorized1 and timely

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submitted; (c) within the defined limitations set forth in this Participation Agreement and

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associated Order; and (d) verified by a partner or shareholder in the submitting law firm.
B.

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Authorization and Submission of Expenses

Participating Counsel must submit expenses consistent with the Order of this

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Qualified Expenses Eligible for Reimbursement

Court. Expenses incurred on matters common to all claimants in MDL 2641 and assigned
by Plaintiffs’ Co-Lead Counsel of the MDL may be submitted for reimbursement.
C.

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Verification

The forms detailing expenses shall be certified by a senior partner in each firm, and

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such certification should attest to the accuracy of the submissions. Attorneys shall keep
13
14
15

receipts for all expenses. Credit card receipts are an appropriate form of verification if
accompanied by a declaration from counsel that the expense was incurred and paid for the
common benefit.

16
17

Cost records shall be electronically submitted to CPA and Plaintiffs’ Co-Lead
Counsel on a monthly basis. Untimely submission of cost records will result in a waiver of

18

said costs. Unsubstantiated costs may be disallowed, as recommended by the CPA and/or

19

Plaintiffs’ Co-Lead Counsel.

20

IV.

COMMON BENEFIT WORK

21

A.

22

In order to be eligible for reimbursement, time expended must be: (a) for the

23

common benefit; (b) appropriately authorized (see Footnote 1 supra); (c) timely

24

submitted; and (d) verified by a partner or shareholder in the submitting law firm.

25

Moreover, if counsel fails to timely submit capital contributions as may be requested by

26

Plaintiffs’ Co-Lead Counsel throughout this litigation, such counsel and members of

27

1

28

Common Benefit Work Eligible for Reimbursement

For the purposes of this Participation Agreement, “authorized” or “approved” in terms of
common benefit expenses and common benefit work shall mean authorized and approved
by Plaintiffs’ Co-Lead Counsel.
6

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 20 of 35

1

his/her firm shall not be allowed to submit common benefit time or expenses for

2

reimbursement. Unsubstantiated costs may be disallowed, as recommended by the CPA

3

and/or Co-Lead Counsel.

4

B.

5

Participating Counsel are prohibited from sharing Common Benefit Work Product

6

with Non-Participating Counsel, as defined herein. Counsel eligible to perform common

7

benefit work includes Plaintiffs’ Co-Lead Counsel, members of the PSC, Co-Chairs and

8
9
10
11
12

Counsel Involved

authorized members of MDL Committees, and other Participating Counsel.
C.

Authorization

Time spent on matters common to all claimants in the MDL must be assigned by
Plaintiffs’ Co-Lead Counsel, directly or via authority specifically provided by Plaintiffs’
Co-Lead Counsel to a Chair or Co-Chair of a sanctioned committee to be eligible for
consideration as common benefit time.

13
14
15
16
17

No time spent on developing or processing

individual issues in any case for an individual client (claimant) will be considered or
should be submitted; nor should time spent on unauthorized work be submitted for
consideration.
(1)

Examples of Authorized and Unauthorized Work:
a.

Depositions of corporate witnesses:

Any attorney not

18

designated as one of the authorized questioners or otherwise

19

authorized to attend a deposition on behalf of the PSC shall

20

not submit time or expenses for preparing for or attending

21

such deposition, as such attendance is deemed to be on behalf

22

of that attorney’s individual clients.

23

b.

Periodic PSC, MDL, or Full-Committee Conference Calls and

24

Meetings: Such calls and meetings are held so that individual

25

attorneys are kept up-to-date on the status of the litigation,

26

therefore participation by listening to such calls is not

27

common benefit work. Each attorney has an obligation to stay

28

informed about the litigation so that they can best represent
7

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 21 of 35

1

their clients, and that is a reason to participate in such calls

2

and meetings. The attorneys designated by Plaintiffs’ Co-

3

Lead Counsel to run those calls are working for the common

4

benefit by keeping other lawyers informed and educated about

5

the case, and their time will be considered common benefit

6

time. Nothing in this paragraph shall be construed to prevent

7

members of the PSC from submitting common benefit time for
participation in PSC communications that are germane to all

8

members of the PSC and are necessary to fulfill their PSC

9

obligations.

10
11
12

c.

Periodic Status Conferences: Periodic status conferences are
held so that the litigation continues to move forward and legal
issues are resolved with the Court. Individual attorneys are

13
14
15
16
17

free to attend any status conference held in open court in order
to keep up-to-date on the status of the litigation, but
participation by attending and listening to such conferences is
not common benefit work. Each attorney has an obligation to
stay informed about the litigation so that they can best

18

represent their clients. Mere attendance at a status conference

19

will not be considered a common benefit expense or common

20

benefit time, nor shall participation in such status conferences

21

via telephone be considered common benefit time.

22

attorneys designated by Plaintiffs’ Co-Lead Counsel to

23

address issues that will be raised at a given status conference

24

or requested by Plaintiffs’ Co-Lead Counsel to be present at a

25

status conference are working for the common benefit and

26

their time will be considered common benefit time.

27
28
8

The

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 22 of 35

1

d.

Identification and Work Up of Experts:

Participating

2

Attorneys are encouraged to identify experts in consultation

3

with the Co-Chairs of the responsible committees.

4

Participating Attorney travels to and retains an expert without

5

the knowledge and approval of Plaintiff’s Co-Lead Counsel,

6

the MDL may not need or use that expert, and the associated

7

time and expense may not be considered common benefit
expenses/work, and therefore may not be compensable.

8
9

e.

Attendance at Various Seminars: Attendance at a seminar that
has as an agenda item about the Bard IVC Filters litigation is

10

not common benefit work or a common benefit expense.

11
12

If a

f.

Document Review:

In the MDL, only document review

specifically assigned to an attorney and authorized by
13

Plaintiffs’ Co-Lead Counsel or one of the co-chairs of a

14

sanctioned Committee will be considered common benefit

15

work. If an attorney elects to review documents that have not

16

been assigned to that attorney by Plaintiffs’ Co-Lead Counsel

17

or one of the Committee Co-Chairs, that review is not

18
19

considered common benefit work.
g.

Review of Pleadings and Orders:

Each attorney has an

20

obligation to stay informed about the litigation so that they can

21

best represent their clients, and review of pleadings and orders

22

is part of that obligation. Only those attorneys designated by

23

Plaintiffs’ Co-Lead Counsel to review and summarize those

24

pleadings or orders for the MDL are working for the common

25

benefit, and their time will be considered common benefit

26

time. All other counsel are reviewing those pleadings and

27

orders for their own benefit and the benefit of their own

28

clients, and the review is not considered common benefit
9

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 23 of 35

1

work. Nothing in this paragraph shall be construed to prevent

2

members of the PSC from submitting common benefit time for

3

reviewing orders that are germane to all members of the PSC

4

and review of which is necessary to fulfill their PSC

5

obligations.

6

h.

Review of Discovery Responses:

Each attorney has an

obligation to stay informed about the litigation so that they can

7

best represent their clients, and that is a reason to review

8

discovery responses served in this litigation.

9

Only those

attorneys designated by Plaintiffs’ Co-Lead Counsel to review

10

and summarize discovery responses for the MDL are working

11

for the common benefit, and their time will be considered

12

common benefit time. All other counsel are reviewing those
13

discovery responses for their own benefit and the benefit of

14

their own clients, and the review is not considered common

15
16
17

benefit work.
i.

Bellwether Trials: While the work-up of individual cases is
not considered common benefit work, in the event that a case

18

is selected as part of an approved bellwether trial process in

19

the MDL, or state court proceeding, the time and expenses in

20

trying the case (including work performed as part of the

21

approved bellwether process) may be considered common

22

benefit work at the discretion of Plaintiffs’ Co-Lead Counsel

23

to the extent it complies with the other provisions of this Order

24

and Participation Agreement.

25
26
27
28
10

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 24 of 35

1

D.

2

All time must be accurately and contemporaneously maintained. Participating

3

Counsel shall keep a daily record of time spent in connection with common benefit work

4

on this litigation, indicating with specificity the hours, location and particular activity

5

(such as “conducted deposition of John Doe”). Time entries must include task-based

6

billing and allocate time to particular tasks; block billing of time will not be accepted.

7

Time entries that are not sufficiently detailed may not be considered for common benefit

8
9
10
11
12

Time Keeping and Submission of Time Records

payments. All common benefit work time for each firm shall be maintained in tenth-ofan-hour increments. Time submissions will be audited by Plaintiffs’ Co-Lead Counsel
and a retained independent expert.
These guidelines are intended for all activities performed and expenses incurred by
Participating Counsel in MDL 2641:
1.

13

under this Participation Agreement, or as set forth in the Joint

14
15

Prosecution Agreement.
2.

16
17

All time submissions must be incurred only for work authorized

All time submissions must be made in the form provided or in the
manner required by the PSC.

3.

Time and expense submissions are to be made on the 15th day of

18

each month, beginning on January 15, 2016. Each submission should

19

contain all time and expenses incurred during the calendar month

20

prior to the submission date (i.e., the February 15, 2016 submission

21

should include all time and expenses incurred during the month of

22

January 2016), though the first submission should include all time

23

and expenses incurred through December 31, 2015. All time and

24

expense submissions should be accompanied by contemporaneous

25

records and verified by a partner or shareholder in the submitting

26

firm. Submissions of time and expense made after the 15th day of

27

the month following the month in which the time or expense were

28

incurred may be rejected.
11

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 25 of 35

1

4.

As to Plaintiffs’ Counsel who are not among those described as

2

Consortium Attorneys in the Joint Prosecution and Confidentiality

3

Agreement whose prior work product will be considered as common

4

benefit time and expenses predating the formation of this MDL, their

5

and other Participating Counsel’s time and expense for new work

6

product will be considered for common benefit fees and expenses

7

commencing September 15, 2015, the date of the issuance of this
Court’s Order Setting Initial Case Management Conference.

8

Moreover, only that time and those expenses incurred for the

9

common benefit of all cases, consistent with the terms of this Order

10

(e.g., activities associated with completing the items to comply with

11

CMO #1), shall be considered for common benefit reimbursement at

12

the end of the litigation.
13

expenses incurred for the common benefit of all cases, consistent

14

with the terms of the Common Benefit Order and this Participation

15
16

Moreover, only that time and those

Agreement, shall be considered.
5.

17

All time submissions must be electronically sent in the designated
form to the attention of Plaintiffs’ Co-Lead Counsel so they can be

18

reviewed, compiled, and submitted to the Court at the appropriate

19

time.

20

6.

Failure to provide submissions in a timely manner may result in a

21

waiver of attorney fees and expenses claimed for the time period that

22

is the subject of the submission. Failure to submit time and expense

23

records in the format approved by Plaintiffs’ Co-Lead Counsel and

24

the PSC will result in a notice of deficiency, after which the

25

submitting firm shall have 15 days to cure the deficient submission.

26

Absent prior approval from Plaintiffs’ Co-Lead Counsel or special

27

circumstances, failure to cure the deficiency within the fifteen-day

28

period shall result in (a) that month’s submission being rejected, and
12

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 26 of 35

1

(b) the submitting firm waiving compensation for the time and

2

expenses submitted that month. Upon a determination by Plaintiffs’

3

Co-Lead Counsel that a Participating Law Firm repeatedly fails to

4

comply with the requirement to timely submit time and expense

5

records in the required format, that Participating Law Firm may be

6

barred from performing future common benefit work.
7.

7

is not considered common benefit time and shall not be submitted.

8
9
10

Time spent compiling the data for the time and expense submissions

E.

Distribution of Fees
1.

No Individual Right to the Funds: No party or attorney has any
individual right to any common benefit funds except to the extent

11

directed by Order of this Court. Common benefit funds will not

12

constitute the property of any party or attorney or be subject to
13

garnishment or attachment for the debts of any party or attorney

14

except when and as directed by court order. These limitations do not

15

preclude a party or attorney from transferring, assigning, or creating a

16

security interest in potential disbursements from the fund if permitted

17

by applicable state laws and if subject to the conditions and

18
19

contingencies of this Agreement.
2.

Court Approval: The amounts deposited in the Bard IVC Filters Fee

20

Fund shall be available for distribution to attorneys who have

21

performed professional services or incurred expenses for the common

22

benefit.

23

benefit award. Each Participating Counsel who does common benefit

24

work has the right to present their claim(s) for compensation and

25

reimbursement prior to any recommendation to the Court.

26

expected that due consideration of payment of common benefit fees

27

and expenses will be given to the recommendation of Plaintiffs’ Co-

The MDL Court retains jurisdiction over any common

28
13

It is

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 27 of 35

1

Lead Counsel, after consultation and recommendations of court-

2

approved third-party special master, by the MDL Court.

3
4
5

Dated:
Firm Name:
Attorney’s Name:

6
7

PLAINTIFFS’ LEADERSHIP COUNSEL

8
9

Dated:
Ramon Rossi Lopez
Plaintiffs’ Co-Lead Counsel

10
11
12

Dated:
Robert W. Boatman
Plaintiffs’ Co-Lead Counsel
5119171v3/26997-0001

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 28 of 35

EXHIBIT B

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 29 of 35

JOINT PROSECUTION AND CONFIDENTIALITY AGREEMENT
In re Bard IVC Filters Litigation
This Joint Prosecution Agreement ("Agreement") is made and entered into by and
between (1) the attorneys that have been litigating actions relating to inferior vena cava
filters manufactured by C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. since 2011,
hereinafter known as the Consortium Lawyers (*previously identified as Lopez McHugh
LLP, Babbitt Johnson, Karon & Dalimonte, Heaviside Reed Zaic, and Law Offices of Ben
C. Martin) and (2) __________________________ (“the Member Attorney/Firm” or
“Member Attorneys/Firms”).
WHEREAS, all federal actions relating to Bard manufactured inferior vena cava filters
have been consolidated before and transferred to Judge David G. Campbell in MDL No. 2641.
WHEREAS, Judge David G. Campbell has ordered that Plaintiffs establish their
leadership structure to facilitate the conduct of pretrial proceedings in MDL No. 2641.
WHEREAS, Consortium Lawyers and Member Attorneys have agreed to a proposed
leadership structure for MDL No. 2641, involving Lead Co-Counsel and a Plaintiff Steering
Committee.
WHEREAS, the Consortium Lawyers have completed a significant amount of
discovery and trial preparation work product that will be beneficial to the litigation of
state and federal court proceedings involving Bard IVC Filter, including:
1. Taking corporate depositions and creating page-line summaries thereof,
2. Creating and maintaining a document depository,
3. reviewing multiple document productions,

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 30 of 35

4. Creating a database and spreadsheet of most relevant documents
5. Preparing and arguing discovery motions,
6. Challenging privilege claims of work product and attorney-client
privilege,
7. Vetting and retaining multi-disciplinary experts all of whom have
submitted multiple Rule 26 reports and been deposed multiple times
8. Deposing all defense experts,
9. Researching, responding and arguing summary judgment motions,
10. Preparing and arguing motions in limine in multiple jurisdictions,
11. Preparing trial deposition cuts for multiple trials,
12. Objections to deposition testimony designated by defense
13. Preparing exhibit lists, and marked exhibits (electronic and hard copy) for
submission to trial court
14. Creating trial ready video testimony presentations with incorporated
exhibits,
15. opening statements,
16. demonstrative boards and videos,
17. 11 days of trial with trial transcript, and
18. Post-settlement briefing obtaining order by Federal Court trial judge that
all testimony and exhibits admitted into evidence are now in the public
domain.
WHEREAS, the undersigned Member Attorne y represents
individual claim ants who have been or m a y be injured as a consequence

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 31 of 35

of thei r Bard m anufactured IVC Filter and the Member Attorney has filed
either or both a state court and/or federal court action on behalf of one or more clients,
or are in the process of doing so.
WHEREAS, the undersigned Member Attorney and all members of the proposed
Plaintiff leadership in MDL No. 2641 are desirous of acquiring the above described work product
created by Consortium Lawyers and establishing an amicable, working relationship with
Consortium Lawyers.
NOW THEREFORE, in consideration of the covenants and mutual
promises contained herein, and intending to be legally bound hereby, the parties agree as
follows:
1. To the extent consistent with the best interest of his or her individual client, the
undersigned Consortium and Member Attorney agrees to assist in a cooperative effort
to investigate, prepare and conduct discovery in State and Federal Court litigations
regarding Bard manufactured IVC Filters (“Subject Litigation”) in order to achieve the
common interest of minimizing cost, maximizing judicial efficiency and assuring the
just and speedy resolution of the undersigned Member Attorney's individual claim and
the other similar claims which collectively comprise the Subject Litigation.
2. In support these common interests:
(a) The undersigned C o nso rt i um La w ye r s a nd Member Attorney agrees to share
information with other Member Attorneys, within their professional discretion,
including discovery materials concerning the common issues involved in the Subject
Litigation except where restricted by the terms of a valid and operative protective
order.

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 32 of 35

(b) The undersigned Member Attorney agrees to take whatever action (including
internal procedures and legal action) that is necessary and appropriate to preserve
both the work product status and confidentiality of the identity and contents of
materials or information provided to them as a result of this Agreement.
(c) To enforce the mutual obligations of this Agreement.
3.

The undersigned Member Attorney agrees to maintain the confidential status of all

confidential information acquired in furtherance of this Agreement and agrees that all
such information (including but not limited to the identity and contents of material contained in or
selected from a document database, confidential communications with other Member Attorneys,
confidential information acquired at seminars, and all correspondence, memoranda, notes and
other materials based on or reflecting the identity or content of such information) shall be
maintained in absolute confidence
4.

In an effort to maintain the confidential status of all information generated by,

developed by and/or acquired from Consortium Lawyers, Member Attorneys agree that they
will not disclose that they have received any materials from other Consortium Attorneys. The
source of the acquisition of relevant data while not germane to a member's lawsuit is germane to
Consortium Attorneys status and usefulness in preparing data bases and other materials.
5.

In the event that a Member Attorney has any data received from consortium Attorneys

and is compelled by a Court to produce or disclose said information, the Member Attorney
must immediately move for the imposition of a protective order which precludes the
attorneys in the subject case from disseminating the data to anyone (attorneys or nonattorneys) outside the confines of the subject case; the protective order shall further restrict the
use of these materials and require the return of the original and any copies of these materials at the

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 33 of 35

completion ofthe case.
9.

To the extent that the undersigned Member Attorney discloses information in

violation of this Agreement, or otherwise waives protection available to the undersigned
Member Attorney (including but not limited to entitlement to protection under the work
product doctrine), such waiver shall not extend to other Member Attorneys or to Consortium
Attorneys.
10.

The undersigned Member Attorney authorizes and designates Consortium Lawyers to act

on his or her behalf in his or her capacity as a Member Attorney for the purpose of entering into
and enforcing the mutual obligations of this Agreement.
11.

No provision of this Agreement shall be construed as requiring the undersigned

Member Attorney to pay to any other Member Attorney any additional fees or costs not
contemplated by this Agreement. Furthermore, this Agreement shall have no effect on any current
or outstanding obligation of the undersigned Member Attorney to pay any other Member Attorney
fees or costs. This Paragraph does not have any effect on any other agreements or orders
(including assessment orders) that now or hereinafter exist relating to payment for any common
benefit work performed by Consortium Lawyers.
12.

Any obligation assumed under this Agreement shall survive the dismissal, settlement or

other resolution of any individual claim handled by the undersigned Member Attorney.
13.

In addition to any other agreements contained herein relating to keeping materials

confidential and preventing disclosure to defendants, Member Attorneys expressly agree not to
release the materials provided hereunder to any other attorney or Bard IVC Filters claimant
whose claims are not represented by Member Attorneys herein or who are not otherwise a

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 34 of 35

signatory to this Agreement.
14.

This Agreement shall apply to each and every claim or action arising from the

defective Bard IVC Filters in which the Member Attorneys have a right to a fee recovery and
shall encompass all claims, filed or unfiled, wherein the Member Attorneys or their respective
law firms have been directly retained by a client in connection with a Bard IVC Filters related
claim, or, alternatively, are associated as co-counsel or otherwise.
15.

In the event that a Member Attorney fails to comply with any provision set forth herein,

his or her Membership shall be subject to immediate termination.
16.

Consortium Attorneys and the Member Attorneys agree to consent to the jurisdiction of

Judge David G. Campbell in the United States District Court for the District of Arizona for the
resolution of any disputes arising from or related to this Agreement.
17.

T h e U n d e r s i g n e d Member Attorney agrees to h o n o r any common benefit

holdback or assessment from settlement or judgment proceeds in any Bard IVC Filter case they
have an interest in, which has been or may be ordered by Judge David G. Campbell in the United
States District Court for the District of Arizona. The Undersigned Member Attorney further agree
to recognize the work product created by Consortium Lawyers prior to said order as counting
towards common benefit time, as to those categories and subject matters that are commonly
recognized as common benefit activities in state and/or federal coordinated actions, whether or
not said work was created prior to or after the consolidation. The recognitions, value and
qualifications of such common benefit activities will be subject to the same scrutiny, protocol,
policies, procedures and evaluations sanctioned by the MDL court for all past, pending and
future common benefit work, which will be the subject of a future Case Management Order,

Case 2:15-md-02641-DGC Document 372 Filed 12/18/15 Page 35 of 35

MEMBER ATTORNEY

Date

____________________________________

CONSORTIUM ATTORNEY

Date:

Case 2:15-md-02641-DGC Document 401 Filed 01/05/16 Page 1 of 5

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION,

MDL No. 2641
CASE MANAGEMENT ORDER
NO. 7

10
11

(Stipulation and Order Concerning
Redactions of Material from Additional
Adverse Event Reports, Complaints, and
Other Documents)

12
13
14
15
16

In accordance with the Stipulation of the Parties and to protect the confidential
information of non-parties,

17

IT IS ORDERED as follows:

18

The Defendants anticipate producing additional and updated adverse event reports

19

and complaint files maintained pursuant to 21 U.S.C. § 360i, 21 C.F.R. § 803.18, and 21

20

C.F.R. § 820.1 - .250 as well as documents relating to those adverse events and

21

complaints files. To the extent that Defendants are able to identify whether these reports

22

and complaint files relate to a particular named Plaintiff at the time they are produced in

23

this litigation, the parties and their attorneys have consented to and agreed that the

24

Defendants shall refrain from redacting the following identifiable information, as defined

25

in 21 C.F.R. § 20.63(f), in the below three circumstances:

26
27
28

(1)

Identifiable information of a Plaintiff in this litigation shall not be redacted,
pursuant to 21 C.F.R. § 20.63(f)(1)(iii);

Case 2:15-md-02641-DGC Document 401 Filed 01/05/16 Page 2 of 5

1

(2)

Identifiable information of a Plaintiff in litigation pending in other state or

2

federal courts shall not be redacted, pursuant to 21 C.F.R. § 20.63(f)(1)(iii),

3

if the attorney or law firm representing that Plaintiff is of record in this

4

multi-district proceeding and the other litigation involves a personal injury

5

claim regarding any of Bard’s inferior vena cava (IVC) filters unless, prior

6

to production by Defendants, counsel of record for a particular plaintiff

7

requests in writing to counsel for Defendants redaction in accordance with

8

the agreed redaction protocol attached as Exhibit A to this Order;

9

(3)

Identifiable information of a voluntary reporter shall not be redacted,

10

pursuant to 21 C.F.R. § 20.63(f)(1)(i), where the reporter is an attorney from

11

any of the law firms of record in this multi-district litigation proceeding.

12

Otherwise, in accordance with 21 CFR § 20.63(f) and other applicable laws,

13

statutes, and regulations, the Defendants shall only redact such information as is set forth

14

in the agreed protocol attached to this Order as Exhibit A, and Plaintiffs shall have the

15

right to object to any redactions made.

16
17

The parties acknowledge that this Stipulated Order is intended to and does satisfy
the written consent requirement of the federal regulations.

18

Any documents containing any reporter or personal identifying information shall

19

be designated and branded as confidential in accordance with the protective order entered

20

in this case.

21
22
23

This Order shall govern all cases transferred, filed, or pending in the abovecaptioned litigation.
Dated this 5th day of January, 2016.

24
25
26
27
28
-2-

Case 2:15-md-02641-DGC Document 401 Filed 01/05/16 Page 3 of 5

EXHIBIT A

Case 2:15-md-02641-DGC Document 401 Filed 01/05/16 Page 4 of 5

Redaction Protocol for Bard Complaint Files 
1) Redactions under the Health Insurance Portability Act of 1996 (HIPAA) and under 
21 CFR 20.63, redact the following:   
Redact the following for the patient, relatives, household members, or employers: 
(1) Names 
 Names of the individuals associated with the corresponding health 
information (i.e., the subjects of the records) and of their relatives, 
employers, and household members are redacted.  Do not redact doctors, 
nurses, etc. for HIPAA. 

(2) County, City and Street address and last two digits of zip code 
 DO NOT REDACT COUNTRY, STATE, OR FIRST THREE DIGITS OF ZIP CODE. 
 Washington, DC is considered a state for HIPAA redaction purposes. 
(3) Birthdates and dates of death 
 DO NOT REDACT THE YEAR 

(4) Telephone numbers 
(5) Fax numbers 
(6) Email addresses 
(7) Social security numbers (even if it is only a portion, or the full number but most is 
X’d out – redact it all) 
(8) Medical record numbers, Accession Numbers, EMR (Electronic Medical Record 
Number), PHR (Personal Health Record), PMR (Personal Medical Record), Clinical 
Trial Record Numbers 
(9) Health plan beneficiary numbers, Group Policy IDs, Policy Numbers, etc. (but not 
the name or address of insurance companies) 
(10) Account numbers 
(11) Certificate/license numbers 
(12) Vehicle identifiers (license plate numbers, VINs, etc.) 

Case 2:15-md-02641-DGC Document 401 Filed 01/05/16 Page 5 of 5

(13) Serial numbers of devices 
(14) URLs, folder paths, file locations if they include patient identifying information or 
the patient’s employer 
(15) IP Addresses if they belong to the patient or the patient’s employer 
(16) Biometric identifiers such as fingerprints, patient chart barcodes 
(17) Full face images (not side profiles) 
(18) Any other unique identifier 
 This can include anything that is unique enough to identify the person 
“President of the United States”, “current Provost of the University of 
Tennessee”, “first man to walk on the moon”, “first heart transplant 
recipient” 
NOT REDACTED: 
 Bard Complaint IDs  
 Information about a person who has been dead 50 years or more 
 Autopsy reports 

2) Redactions of Reporter Information ‐ 21 CFR 20.63 

The names, address (including city, state, and country), of any reporter (except if it is a 
Bard Employee or FDA representative), including the names of  
(1) Names of any doctor, nurse, intern, or employee of the reporter institution.  This 
includes initials. 
(2) Name of the hospital/institution. 
(3) All geographic information including city, state, country, zip code, etc. 
(4) Phone numbers, fax numbers, or pager numbers for the institution, doctor, etc. 
(5) Email addresses, websites for the hospital, etc. 
 Bard Employees are not redacted because not considered voluntary reporters 
 If reporter is an attorney or law firm subject to parties’ stipulation regarding 
redaction, do not redact the attorney/law firm as the reporter. 

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 1 of 10

1
2
3
4
5
IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7
8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

MDL 15-02641-PHX DGC
CASE MANAGEMENT
ORDER NO. 8

10
11
12
13

The Court held a second case management conference with the parties on

14

January 29, 2016. The conference was scheduled to address a number of issues identified

15

in Case Management Order No. 2 (“CMO 2”) (Doc. 249).

16

I.

Second-Phase Discovery.

17

The parties have largely completed the first phase of discovery outlined in CMO 2.

18

The Court adopts the following schedule for the second phase of discovery in this MDL

19

proceeding. The discovery shall include all common fact and expert issues in this MDL,

20

but not case-specific issues to be resolved in individual cases after remand.

21

A.

22

The deadline for completing fact discovery, including discovery by subpoena,

23

shall be October 28, 2016. To ensure compliance with this deadline, the following rules

24

shall apply:

25

Fact Discovery.

1.

Depositions: All depositions shall be scheduled to commence at

26

least five working days prior to the discovery deadline. A deposition commenced five

27

days prior to the deadline may continue up until the deadline, as necessary.

28

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 2 of 10

1

2.

Written Discovery: All interrogatories, requests for production of

2

documents, and requests for admissions shall be served at least 45 days before the

3

discovery deadline.

4

3.

The parties may mutually agree in writing, without Court approval,

5

to extend the time provided for discovery responses in Rules 33, 34, and 36 of the Federal

6

Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or

7

extend the discovery deadlines set forth in this order.

8
9

B.

Expert Disclosures and Discovery.
1.

Plaintiffs shall provide full and complete expert disclosures as

10

required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than

11

December 16, 2016.

12

2.

Defendant(s) shall provide full and complete expert disclosures as

13

required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than

14

February 3, 2017.

15

3.

Rebuttal expert disclosures, if any, shall be made no later than

16

March 3, 2017. Rebuttal experts shall be limited to responding to opinions stated by

17

initial experts.

18

4.

Expert depositions shall be completed no later than May 19, 2017.

19

5.

Disclosures under Rule 26(a)(2)(A) must include the identities of

20

treating physicians and other witnesses who will provide testimony under Federal Rules

21

of Evidence 702, 703, or 705, but who are not required to provide expert reports under

22

Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the

23

dates set forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on

24

which the witness will testify, but must also provide a summary of the facts and opinions

25

to which the expert will testify. The summary, although clearly not as detailed as a

26
27
28

-2-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 3 of 10

1

Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the

2

expert will say at trial.1

3

6.

As stated in the Advisory Committee Notes to Rule 26 (1993

4

Amendments), expert reports under Rule 26(a)(2)(B) must set forth “the testimony the

5

witness is expected to present during direct examination, together with the reasons

6

therefor.” Full and complete disclosures of such testimony are required on the dates set

7

forth above; absent extraordinary circumstances, parties will not be permitted to

8

supplement expert reports after these dates. The Court notes, however, that it usually

9

permits parties to present opinions of their experts that were elicited by opposing counsel

10

during depositions of the experts. Counsel should depose experts with this fact in mind.

11

C.

12

In CMO 4 (Doc. 363), the Court identified 13 mature cases. The Court and parties

13

concluded at the conference that these cases should not be subject to a separate discovery

14

track, but that some or all of them may be ready for remand before other cases in this

15

MDL proceeding. The parties should confer and agree on additional discovery or motion

16

practice needed for these 13 cases, and shall file a stipulation identifying the specific

17

litigation steps to be taken with respect to these cases. The purpose will be to remand

18

these cases as soon as reasonably possible, rather than postponing their disposition until

19

the end of this MDL proceeding.

20

March 1, 2016.

21

II.

Mature Cases.

The parties’ stipulation shall be filed by

Bellwether Selection Process.

22

The parties will confer and seek to agree on procedures to govern the selection of

23

bellwether cases. The parties shall file a stipulation or joint submission on this issue by

24
25
26
27
28

1

In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the
Ninth Circuit held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s
written report requirement to the extent that his opinions were formed during the course
of treatment.” Id. at 826. Thus, for opinions formed outside the course of treatment,
Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course
of treatment, Rule 26(a)(2)(C) disclosures will suffice.
-3-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 4 of 10

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March 1, 2016.

2

Defendants’ fact sheets, as were previously to be submitted on January 15, 2016. In this

3

respect, the Court grants the parties’ stipulation at Doc. 436.

4

III.

The submission shall include proposed forms of Plaintiffs’ and

ESI and Previously Searched Custodians.

5

The Court held an extended discussion with the parties on electronically stored

6

information (“ESI”) previously produced in this case, Plaintiffs’ desire for additional

7

information on the ESI, and related matters. The Court enters the following orders.

8

A.

9

System Architecture.
1.

Defendants shall provide Plaintiffs, in an interview or Rule 30(b)(6)

10

deposition, information regarding Defendants’ corporate structure and corporate

11

information systems.

12

understanding the locations of information relevant to this litigation.

13

2.

The purpose of these disclosures will be to aid Plaintiffs in

After obtaining this general information, Plaintiffs may conduct an

14

interview or a Rule 30(b)(6) deposition focusing on the architecture of Defendants’

15

information systems that are reasonably likely to contain information relevant to the

16

products at issue in this MDL proceeding.

17

comparable to the kind of location discovery that was expressly permitted by Rule

18

26(b)(1) before December 1, 2015, and removed from the language of the rule only

19

because the Advisory Committee concluded that it was unnecessary because such

20

discovery is routinely granted.

21
22

B.

The Court deems this discovery as

Defendants’ ESI Collection Efforts.
1.

Defendants shall provide Plaintiffs with the following categories of

23

information in the form of interrogatory answers: A reasonably detailed description of

24

the kinds of information defense counsel obtained from Bard witnesses interviewed as

25

part of Defendants’ document and ESI collection efforts in 2005 and 2006; a reasonably

26

detailed description of update efforts Defendants have undertaken with respect to those

27

custodians; reasonably detailed information regarding steps Defendants have taken to

28

locate and produce relevant information from their shared document management

-4-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 5 of 10

1

systems, including QUMAS and Master Control; all combinations of keyword search

2

terms used by Defendants when searching for ESI, including instructions within these

3

combinations of search terms; and any testing Defendants have done to determine

4

whether their searches for ESI have been over-inclusive or under-inclusive.

5

2.

Once the foregoing information has been exchanged, the parties

6

shall meet and confer about additional information sought by Plaintiffs. Plaintiffs shall

7

identify, with specificity, the categories of additional information they seek regarding

8

Defendants’ ESI-collection efforts. If the parties are unable to agree, they shall submit to

9

the Court a matrix that contains a separate line for each specific category of information

10

Plaintiffs seek, with two columns on each line. The left column shall set forth Plaintiffs’

11

specific information request and an explanation of why it is relevant and discoverable.

12

The second column shall set forth Defendants’ response and explanation as to why the

13

information is not discoverable. The parties shall complete this process and, if necessary,

14

submit the matrix to the Court by March 18, 2016.

15

C.

16

The Court concludes that it is premature for the parties to engage in discovery

17

focused primarily on Defendants’ alleged failure to preserve ESI. Thus far, there has

18

been no demonstration that ESI has been lost. In addition, under Rule 37(e), parties

19

should seek to find allegedly lost ESI through additional discovery efforts before a Court

20

is to take corrective or punitive measures. If Plaintiffs later develop a good faith basis for

21

concluding that relevant ESI has been lost and that some remedy is appropriate under

22

Rule 37(e), they may raise the issue with the Court. This ruling does not foreclose

23

Plaintiffs, during a deposition of a witness, from asking where information relevant to

24

that witness’s testimony is located.

25

IV.

26

Preservation Discovery.

Document and ESI Discovery from New Custodians.
A.

Defendants shall provide to Plaintiffs, in the form of interrogatory answers,

27

the identification of employees who were involved with the Eclipse, Meridian, and

28

Denali filters and whose documents and ESI have not yet been searched.

-5-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 6 of 10

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B.

With this information in hand, Plaintiffs shall identify the specific

2

custodians from whom they seek ESI discovery using the search terms already

3

established in prior cases, and any additional search terms upon which the parties agree.

4

If the parties are unable to reach agreement on custodians, they shall include the specific

5

identifications of these custodians, and the searches Plaintiffs seek with respect to the

6

custodians, in the matrix to be provided to the Court by March 18, 2016.

7

V.

FDA Inspection and Warning Letter.

8

On or before February 10, 2016, the parties shall file 15-page memoranda

9

addressing the relevancy and discoverability of information related to the FDA inspection

10

and warning letter. The purpose will be to aid the Court in determining whether further

11

discovery with respect to the letter is warranted in this case. As part of the briefing,

12

Plaintiffs should describe the specific discovery they seek with respect to the letter.

13

VI.

Discovery Regarding Recovery Cone Removal System.

14

The briefing described in the preceding paragraph shall include a discussion of the

15

Recovery Cone Removal System, why it is or is not relevant in this case, and why

16

discovery regarding the system is or is not warranted.

17

VII.

Discovery Regarding Simon Nitinol Filter.

18

Plaintiffs shall identify the specific discovery they seek to take regarding the

19

Simon Nitinol Filter (“SNF”). The parties shall meet and confer regarding this requested

20

discovery. If the parties are unable to reach agreement, they shall include Plaintiffs’

21

specific discovery requests, and Defendants’ objections, in the matrix to be filed by

22

March 18, 2016, as discussed above.

23

VIII. Discovery Regarding Sales and Marketing Personnel.

24

Discovery may begin with respect to Defendants’ national sales and marketing

25

practices. If, after completion of this discovery, Plaintiffs feel that discovery is needed of

26

Defendants’ regional sales and marketing practices, they shall discuss their specific

27

discovery requests with Defendants. If the parties are unable to reach agreement, they

28

shall raise this issue with the Court. The Court will not set a deadline for this issue to be

-6-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 7 of 10

1

raised, but it should not be raised so late in the fact discovery schedule to afford

2

insufficient time for discovery to be completed.

3

IX.

Pending Rule 30(b)(6) Notices in Consolidated Cases.

4

Issues regarding discovery of sales and marketing practices have been dealt with

5

above. Discovery regarding the remaining issues in current notices – the FDA warning

6

letter, regulatory affairs and communications, and post-market surveillance and adverse

7

events reporting – should be addressed by the parties after the Court rules on the

8

discoverability of the FDA warning letter. Existing notices are deemed moot, and may be

9

re-issued during the discovery period if warranted. Disagreements should be brought to

10

the Court’s attention.

11

X.

Depositions of Previously-Deposed Witnesses.

12

Defendants have noted that approximately 80 witnesses have been deposed in

13

connection with these cases before establishment of the MDL. Defendants generally

14

oppose re-deposing these witnesses on topics already covered. Plaintiffs agree that there

15

would be no purpose in re-asking the same questions of the same witnesses who were

16

previously deposed. The parties have filed memoranda on the question of what discovery

17

taken in Bard filter cases before this MDL proceeding should be deemed binding in this

18

proceeding.

19

As the Court observed during the conference, this is not a matter governed by

20

Rule 32(a)(8). That rule concerns the use of depositions in later proceedings; it does not

21

place a limit on depositions in later proceedings. Although Rule 30(a) generally permits

22

deposition of witnesses, Rule 26(b)(2)(C) provides that the Court must limit discovery

23

“otherwise allowed by these rules” if “the discovery sought is unreasonably cumulative

24

or duplicative, or might be obtained from some other source that is more convenient, less

25

burdensome, or less expensive,” or if “the proposed discovery is outside the scope

26

permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

27

The Court declined to place a numerical limit on the number of fact depositions

28

Plaintiffs may conduct in this MDL. The Court also declined to place an hours limit on

-7-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 8 of 10

1

depositions. At the same time, the Court strongly agrees that the parties should not spend

2

time asking the same questions of the same witnesses who have been deposed in these or

3

previous filter cases.

4

disagreements about whether previously-deposed witnesses may be deposed again.

5

A.

The Court establishes the following procedure for resolving

If Plaintiffs conclude that a previously-deposed witness should be deposed

6

again, Plaintiffs shall provide Defendants with an explanation of why the witness should

7

be deposed again. Relevant reasons would include, but are not necessarily limited to,

8

new topics that are relevant to this MDL proceeding and were not addressed in the

9

previous deposition, or new information about topics that were addressed in the previous

10

deposition. Plaintiffs shall provide Defendants with an approximation of the time for the

11

renewed deposition. The parties shall confer in good faith to reach agreement with

12

respect to the proposed deposition.

13

B.

If the parties are unable to agree, Defendants shall bear the burden of

14

seeking a protective order under Rule 26(b)(2)(C). Defendants shall do so by placing a

15

joint conference call to the Court to discuss the proposed depositions. The Court hopes

16

the parties will be able to reach agreement on these issues and, if not, that the Court’s

17

rulings on a few depositions will provide sufficient guidance for the parties to reach

18

agreement in the future. The Court will consider appointment of a Special Master if the

19

issues become too numerous, but strongly prefers not to add that additional complexity

20

and expense to this case.

21

C.

The parties and the Court talked about whether “trial depositions” should

22

be taken in this MDL. Plaintiffs suggested that such depositions could justifiably address

23

questions and subjects previously covered in depositions. The Court will not authorize

24

trial depositions at this point. If Plaintiffs conclude at a later stage that trial depositions

25

of some witnesses should be taken, they may raise the issue with Defendants. The Court

26

is reluctant, however, to adopt a procedure that will result in the re-deposition of virtually

27

every witness previously deposed in this or related litigation solely for the purpose of

28

capturing trial testimony.

-8-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 9 of 10

1

XI.

Discovery Regarding Kay Fuller Allegations.

2

Plaintiffs may depose witnesses Edwards and Vierling in connection with Kay

3

Fuller allegations. With respect to other witnesses Plaintiffs seek to depose, the parties

4

shall follow the procedures set forth in section X above.

5

XII.

Early Consideration of Equitable Tolling.

6

The Court and the parties discussed whether this MDL proceeding is the correct

7

venue to address or decide equitable tolling issues. Such issues may implicate case-

8

specific matters such as state law, when a particular Plaintiff knew or should have known

9

of his or her claim, and other case-specific equitable factors. If it is possible to address

10

this issue on an MDL-wide basis that would advance the litigation, however, it should be

11

considered. Defendants stated that they will discuss this issue further with Plaintiffs and

12

bring it to the Court’s attention if they wish to propose a method for considering

13

equitable tolling in this proceeding.

14

XIII. Pending Motions in Individual Cases.

15

Exhibit 7 to the parties’ joint report (Doc. 451-7) identifies a number of motions

16

pending in cases that have been transferred to this MDL. The Court concluded that these

17

motions should be denied without prejudice to the parties’ reasserting them in the

18

individual cases after this MDL proceeding is resolved, or asserting them as part of non-

19

case-specific issues and motions to be resolved in this proceeding. The Court shall deny

20

these motions without prejudice, making reference to this Case Management Order.

21

XIV. Privilege Log Issues.

22

The parties advised the Court that they may be able to reach agreement on the best

23

method for resolving their disagreements with respect to privilege logs. The parties shall

24

advise the Court by February 12, 2016, whether they have been able to reach agreement

25

and, if not, their recommended procedure for resolving the issues.

26

XV.

ESI Protocol.

27

The Court will enter the parties’ stipulated order at Doc. 438. The Court directed

28

the parties, however, to engage in additional discussions about whether they can agree on

-9-

Case 2:15-md-02641-DGC Document 519 Filed 02/02/16 Page 10 of 10

1

a stipulated order dealing with preservation, including by Plaintiffs. The parties shall

2

notify the Court on or before February 12, 2016, as to whether they have reached

3

agreement on this issue. If they have, they shall submit a stipulated order to the Court.

4

XVI. Next Case Management Conference.

5

The next Case Management Conference will be held on March 31, 2016 at

6

10:00 a.m. The parties shall provide the Court with a joint status report, and any issues

7

they wish to address at the conference, by March 25, 2016. The parties’ submission

8

should include a proposed agenda for the conference.

9

Dated this 2nd day of February, 2016.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 10 -

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 1 of 14

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products
Liability Litigation,

No. MD-15-02641-PHX-DGC
AMENDED CASE MANAGEMENT
ORDER NO. 5

10
(Plaintiff and Defendant Profile
Forms)

11
12
13

The parties have agreed upon the use of an abbreviated Plaintiff Profile Form

14

(“PPF”) (Exhibit 1) attached to this Order. Except as expressly noted herein, the PPF

15

shall be completed in each currently pending case, and in all cases that become part of this

16

MDL by virtue of being filed in, removed to, or transferred to this Court on or after the

17

date of this Order.

18

Each plaintiff in currently filed cases (except as noted herein) shall submit a

19

completed PPF to defendants within 60 days of the date of this Order. In cases that have

20

been filed in, removed to, or transferred to this MDL on or after the date of this Order,

21

each plaintiff shall submit a completed PPF to defendants within 60 days of filing the

22

complaint.

23

The completed PPF shall be delivered via email to: filterppf-

24

[e-mail] and to co-lead counsel via email at [e-mail]

25

and [e-mail] .

26

Each plaintiff is required to provide defendants with a PPF that is substantially

27

complete in all respects, answering every question in the PPF, even if a plaintiff can

28

answer the question in good faith only by indicating “not applicable” or “unknown.” The

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 2 of 14

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16
17
18
19
20
21
22
23
24
25
26

PPF shall be signed by the plaintiff under penalty of perjury. If a plaintiff is suing in a
representative or derivative capacity, the PPF shall be completed by the person with the
legal authority to represent the estate or the person under legal disability. Plaintiff
spouses with a claim for loss of consortium shall also sign the PPF, attesting that the
responses made to the loss of consortium questions in the PPF are true and correct to the
best of his or her knowledge, information and belief, formed after due diligence and
reasonable inquiry.
A completed PPF shall be considered interrogatory answers under Fed. R. Civ. P.
33 and responses to requests for production under Fed. R. Civ. P. 34, and will be governed
by the standards applicable to written discovery under Federal Rules 26 through 37. The
interrogatories and requests for production in the PPF shall be answered without objection
as to the question posed in the agreed upon PPF. This section does not prohibit a plaintiff
from withholding or redacting information from medical or other records provided with
the PPF based upon a recognized privilege. If information is withheld or redacted on the
basis of privilege, plaintiff shall provide defendants with a privilege log that complies
with Fed. R. Civ. P. 26(b)(5) simultaneously with the submission of the PPF.
If a plaintiff does not submit a PPF within the time specified in this Order,
defendants shall mail an overdue letter by e-mail and U.S. mail to Plaintiffs’ Co-Lead
Counsel and the plaintiffs’ individual representative counsel, stating that defendants may
move to dismiss that plaintiff’s case within 20 days of receipt of the letter. If no PPF is
received within those 20 additional days, defendants may move immediately to dismiss
that plaintiff’s case. If defendants receive a PPF that is not substantially complete,
defendants’ counsel shall send a deficiency letter within 14 days of receipt of a PPF, as
applicable by e-mail and U.S. mail to Plaintiffs’ Co-Lead Counsel and the plaintiffs’
individual representative counsel, identifying the purported deficiencies. Plaintiff shall
have 20 days from receipt of that letter to serve a PPF that is substantially complete in all

27
28
2

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 3 of 14

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respects. This letter shall include sufficient detail for the parties to meet and confer
regarding the alleged deficiencies.
Within 45 days of receipt of a substantially complete PPF for an individual
plaintiff, the defendants shall provide the plaintiff with a completed Defendants’ Profile
Form (DPF) (Exhibit 2) attached to this order. A completed DPF shall be considered
interrogatory answers under Fed. R. Civ. P. 33 and responses to requests for production
under Fed. R. Civ. P. 34, and will be governed by the standards applicable to written
discovery under Federal Rules 26 through 37. The interrogatories and requests for
production in the DPF shall be answered without objection as to the question posed in the
agreed upon DPF. This section does not prohibit a defendant from withholding or
redacting information from medical or other records provided with the DPF based upon a
recognized privilege. If information is withheld or redacted on the basis of privilege,
defendants shall provide plaintiff with a privilege log that complies with Fed. R. Civ. P.
26(b)(5) simultaneously with the submission of the DPF.
If the plaintiff receives a DPF that is not substantially complete, plaintiff’s counsel
shall send a deficiency letter within 14 days of receipt of a DPF, as applicable by e-mail
and U.S. mail to Defendants’ Lead Counsel identifying the purported deficiencies.
Defendants shall have 20 days from receipt of that letter to serve a DPF that is
substantially complete in all respects. This letter shall include sufficient detail for the
parties to meet and confer regarding the alleged deficiencies.
The procedures outlined in this Order shall not apply to the following cases:

22
Plaintiff

Original Jurisdiction

1.

Cason, Pamela

2.

Coker, Jennifer

3.

Conn, Charles

GA – N.D. Ga.
1:12-cv-1288
GA – N.D. Ga.
1:13-cv-515
TX – S.D. Tex.
4:14-cv-298

23
24
25
26
27
28

3

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 4 of 14

1

Plaintiff

Original Jurisdiction

4.

Ebert, Melissa

5.

Fox, Susan

6.

Henley, Angela

7.

Keen, Harry

8.

Milton, Gary

9.

2

Mintz, Jessica

PA – E.D. Pa.
5:12-cv-1253
TX – N.D. Tex.
3:14-cv-133
WI – E.D. Wis.
2:14-cv-59
PA – E.D. Pa.
5:13-cv-5361
GA – M.D. Ga.
5:14-cv-351
NY – E.D.N.Y.
2:14-v-4942
FL – M.D. Fla.
8:13-cv-1962
MI – E.D. Mich.
4:14-cv-13627
TX – E.D. Tex.
1:13-cv-633
FL – M.D. Fla.
3:13-cv-222

3
4
5
6
7
8
9
10
11

10. Ocasio, Denise

12
11. Rivera (McClarty), Vicki

13
14

12. Smith, Erin

15
16

13. Tillman, Lessie

17
18
19
20

The parties are relieved from preparing or exchanging profile forms in those particular
cases.
Dated this 2nd day of March, 2016.

21
22
23
24
25
26
27
28
4

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 5 of 14

EXHIBIT 1

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 6 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
MDL No. 2641
In Re Bard IVC Filter Products Liability Litigation

In completing this Plaintiff Profile Form, you are under oath and must provide information that
is true and correct to the best of your knowledge. The Plaintiff Profile Form shall be completed
in accordance with the requirements set forth in the applicable Case Management Order.

1. CASE INFORMATION
Caption:

-----------------

Date:

-----------

Docket N o . : - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff's attorney and Contact information:

2. PLAINTIFF INFORMATION
Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Maiden Name: - - - - - - - - - - - - - - - - - - - - - - - - - - - Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Date of b i r t h : - - - - - - - - - - - - - - - - - - - - - - - - - - - Social Security N o . : - - - - - - - - - - - - - - - - - - - - - - - - - Occupation:---------------------------Spouse: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Is Spouse Making Claim for Loss of Consortium? DYes D No
3. DEVICE INFORMATION
A. Filter Model (e.g., Recovery®, G2®, e t c . ) : - - - - - - - - - - - - - - - B. LotNumber: - - - - - - - - - - - - - - - - - - - - - - - - C. Date of Bard IVC Filter implant: - - - - - - - - - - - - - - - - - D. Attach medical evidence of product identification and operative report for filter
placement.

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 7 of 14

E. Please check all the reasons why you believe your Bard Filter was placed:
0 Filter Placed After Being Diagnosed with Deep Vein Thrombosis/Pulmonary
Embolism
0 Filter Placed in Conjunction with or before Orthopedic Procedure
D Filter Placed in Conjunction with Trauma Situation/Motor vehicle accident

0 Filter Placed in Conjunction with or before Bariatric Procedure

0 Other Reason(s) for implant (explain): - - - - - - - - - - - - - - - -

0 Unknown
0 See medical records attached

F. Provide the name and address of both the doctor who implanted the Bard Filter and
the hospital or medical facility at which the filter was placed:
Doctor: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Hospital/MedicalFacility: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

~

"

4. FAILURE MODE ALLEGED
Please check all failure mode(s) that you allege apply to your Bard Filter:
D Fracture

0 Perforation of filter strut(s) into organs
O Migration of entire filter to heart

0 Tilt with filter embedded in wall of the IVC
0 Device unable to be retrieved
0 Bleeding
0 Other failure mode(s)

If other, please d e s c r i b e - - - - - - - - - - - - - - - - - - - - -

5. REMOVAL INFORMATION
A. Has your Bard Filter been removed?
DYes

DNo

2

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 8 of 14

D Unknown
B. If your Bard Filter has been removed or a doctor has attempted to remove your

Filter, please check all that apply regarding the removal or attempted removal
procedure(s):
DRemoved percutaneously
D Removed via an open abdominal procedure
D Removed via an open chest procedure
D Attempted but unsuccessful percutaneous removal procedure
D Attempted but unsuccessful open abdominal procedure
D Attempted but unsuccessful open chest procedure
D Unknown
D See medical records attached

C. Provide the name(s) and address(es) of both the doctor(s) who removed your Bard
Filter (or attempted to remove it) and the hospital or medical facility where
removal/attempted removal occurred:
Filter Removal/Attempted Removal #1
Doctor: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Hospital/MedicalFacility: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Filter Removal/Attempted Removal #2
Doctor: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Hospital/MedicalFacility: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

6. FRACTUREDSTRUTS
A. Do you claim that your Bard Filter fractured?
D Yes
DNo
If you answered YES, answer the below questions in this section.
If you answered NO, skip the rest of Section 6 and go below to section 7 - "Outcome
Attributed to Device."

3

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 9 of 14

B. Are any fractured filter struts retained in your body?
D Yes
DNo
D Unknown

If yes, identify the location(s) within your body of each retained filter strut.

C. Have any fractured filter struts been removed from your body?
D Yes

DNo
D Unknown

D. If any fractured filter strut has been removed (or a doctor has attempted to remove
any strut), please check all that apply regarding the removal I attempted removal
procedure(s):
D Removed percutaneously
D Removed via an open abdominal procedure

D Removed via an open chest procedure
D Attempted but unsuccessful percutaneous removal procedure
D Attempted but unsuccessful open abdominal procedure
D Attempted but unsuccessful open chest procedure

D Unknown

E. Provide the name and address of both the doctor who removed (or attempted to
remove) the filter strut(s) and the hospital or medical facility at which it was
removed (or attempted to be removed)
Filter Strut Removal/Attempted Removal #1
Doctor: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

4

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 10 of 14

Hospital/MedicalFacility:

-----------------------

Filter Strut Removal/Attempted Removal #2
Doctor:

----------------------------~

Hospital/MedicalFacility: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

7. OUTCOME ATTRIBUTED TO DEVICE
A. Do you claim to be suffering from any bodily injuries, including psychological
injuries that are above and beyond usual pain and suffering and mental anguish,
related to the Filter?
D Yes
DNo
If your answer is "Yes," please list all symptoms and injuries you claim to have suffered:

Of the injuries/symptoms you listed above, which do you claim to be suffering from at
the current time:

***

Plaintiff reserves the right to supplement any and all responses upon the receipt of additional
information.

Date

Signature of Plaintiff

Date

Signature of Plaintiff - Spouse (signature only
necessary if Loss of Consortium is alleged)

5

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 11 of 14

EXHIBIT 2

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 12 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

MDL No. 2641

DEFENDANT BARD CASE PROFILE FORM

For each case, the Bard Defendants must complete this Defendant Profile Form ("DPF")
in accordance with the schedule established by the Court's Pretrial Order. In completing this
Profile Form, you must answer every question.
I.

CASE INFORMATION

This defendant profile form pertains to the following case:
Case c a p t i o n : - - - - - - - - - - - - - - - - - - - - - - - - - - - Civil Action No.: - - - - - - - - - - - - - - - - - - - - - - - - - - Court in which action was originally filed: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

II.

CONTACTS WITH IMPLANTING AND REMOVING PHYSICIANS

Plaintiff has identified each healthcare provider who implanted, removed and/or
attempted to remove Bard's Filter. With respect to each of those healthcare providers, provide
the following information:
A.

CONSULTATION AGREEMENT
1. As to the identified healthcare providers, state whether Bard has consulting
agreement with the healthcare provider relating to IVC filters that Bard has been able
to locate after a reasonable and diligent search.

B.

SALES REPRESENTATIVE AND OTHER RELATED CONTACTS
As to each sales representative, territory manager and district manager who had any
contact with an identified physician or healthcare provider, set forth the following:
1.

Identity and last known address and telephone number of Representative(s):

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 13 of 14

As to the individual who Bard believes was the territory manager and district manger for
the territory where the filter was implanted at the time of implant, set forth the following:
2.

Identify the name of the territory manager and district manger, the dates of
employment for each, and, if no longer employed by Bard, provide the last known
address:
Territory Manager:

Employment D a t e s : - - - - - - - - - - - - - - - - - If former, last known address: - - - - - - - - - - - - - - -

District Manager:
Name: - - - - - - - - - - - - - - - - - - - - - - Employment D a t e s : - - - - - - - - - - - - - - - - - If former, last known address: - - - - - - - - - - - - - - -

III.

MANUFACTURING INFORMATION

A.

Identify

B.

Identify the lot number for the Bard device used to remove or used to attempt to remove
the Bard Filter implanted into Plaintiff:

C.

Identify the location and date of manufacture for each lot set forth in response to A and B
above: - - - - - - - - - - - - - - - - - - - - - - - - - - - - IV.

A.

the

lot

number(s)

for

the

Bard

filter

implanted

in

Plaintiff:

DOCUMENTS

Please produce the following:
1. The Device History Record (DHR) for the Bard filter at issue, or, if already produced,
provide the bates number for the DHR.

2

Case 2:15-md-02641-DGC Document 927 Filed 03/03/16 Page 14 of 14

2. The Bard complaint file relating to plaintiffs claims, or, in the alternative if already
produced, provide the bates number for the complaint.
3. The bates numbers for any documents previously produced that reference the
implanting physician and/or the hospital or facility where the device as placed, that
Bard is able to identify after a reasonable and diligent search.
4. Any consulting agreement relating to IVC filters that Bard has entered with the
physician that implanted the filter.
5. With regard to the plaintiff, any Med Watch Adverse Event Reports in Bard's
possession.

Attorney for C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.

[Signature]

3

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 1 of 10

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

IN RE: Bard IVC Filters Products
Liability Litigation,

9

No. MD-15-02641-PHX-DGC
AMENDED CASE MANAGEMENT
ORDER NO. 4

10
(Master Complaint, Master
Responsive Pleading, Use of Short
Form Complaint, Waiver of Service
for Bard Defendants, and Answer
and General Denial in Cases
Subsequently Transferred to MDL
2641)

11
12
13
14
15
16

The parties have submitted a Master Long Form Complaint and Jury Demand

17

(previously docketed as Doc. 303-1) and a Master Responsive Pleading (previously

18

docketed as Doc. 303-3). The Court has reviewed these proposed pleadings, finds them

19

sufficient, and directs the Clerk to file them as separate documents in the Court’s docket.1

20

The parties have also submitted a proposed Amended Short Form Complaint, a copy of

21

which is attached to this order. The Court also finds these proposed pleadings to be

22

sufficient.

23

IT IS ORDERED:

24

All allegations pled in the Master Complaint and all responses pled in the Master

25

Responsive Pleading are deemed pled in any previously filed Complaint and Responsive

26

Pleading in this MDL proceeding, except as expressly noted below. They are also deemed

27
28

1

The reference to “Federal Rule of Evidence 8” on the first page of the Master
Complaint shall be deemed to be a reference to Federal Rule of Civil Procedure 8.

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 2 of 10

1

pled in any Short Form Complaint (attached to CMO No. 4, Doc. 363) or Amended Short

2

Form Complaint (attached to this Order) and Entry of Appearance filed after the entry of

3

Doc. 363, except that the Master Complaint applies only against the Defendant or

4

Defendants identified in such Short Form Complaints or Amended Short Form

5

Complaints.

6

The following cases will not be governed by the Master Complaint and Master

7

Responsive Pleading, but will continue to be governed by the complaints (including any

8

amended complaints) and answers filed in the various transferor courts prior to transfer:

9
Plaintiff

10
11

1.

Original Jurisdiction

Cason, Pamela

GA – N.D. Ga.
1:12-cv-1288

12
13

2.

Coker, Jennifer

GA – N.D. Ga.
1:13-cv-515

14
15

3.

Conn, Charles

TX – S.D. Tex.
4:14-cv-298

16
17

4.

Ebert, Melissa

PA – E.D. Pa.
5:12-cv-1253

18
19

5.

Fox, Susan

TX – N.D. Tex.
3:14-cv-133

20
21

6.

Henley, Angela

WI – E.D. Wis.
2:14-cv-59

22
23

7.

Keen, Harry

PA – E.D. Pa.
5:13-cv-5361

24
25

8.

Milton, Gary

GA – M.D. Ga.
5:14-cv-351

26
27

9.

Mintz, Jessica

NY – E.D.N.Y.
2:14-v-4942

28
2

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 3 of 10

1
2

Plaintiff

Original Jurisdiction

10. Ocasio, Denise

FL – M.D. Fla.
8:13-cv-1962

3
4

11. Rivera (McClarty), Vicki

MI – E.D. Mich.
4:14-cv-13627

5
6

12. Smith, Erin

TX – E.D. Tex.

7
8

1:13-cv-633
13. Tillman, Lessie

FL – M.D. Fla.

9

3:13-cv-222

10
11

On or after December 28, 2015, any plaintiff whose case would be subject to

12

transfer to MDL 2641 may file his or her case directly in this Court by using the Short

13

Form Complaint (Doc. 363). After February 23, 2016, Plaintiffs may use the Amended

14

Short Form Complaint attached to this Order. If such a case is filed in this Court without

15

the use of the Short Form Complaint or Amended Short Form Complaint, Plaintiffs’ Co-

16
17
18
19
20
21
22
23
24
25
26
27
28

Lead Counsel shall promptly advise the filing party to file an amended complaint using
the Short Form Complaint or Amended Short Form Complaint. If the filing party fails to
do so, Plaintiffs’ Co-Lead Counsel shall promptly notify the Court.
Defendants are not required to file answers to Short Form Complaints or Amended
Short Form Complaints.

An Entry of Appearance shall constitute a denial of all

allegations in the Short Form Complaints or Amended Short Form Complaints except as
herein provided, and an assertion of all defenses included in the Master Responsive
Pleading. By filing an Entry of Appearance in response to a Short Form Complaint or
Amended Short Form Complaint, in lieu of an answer, Defendants do not waive any
defenses, including jurisdictional and service defenses.
Civil actions in this MDL were transferred to this Court by the Judicial Panel on
Multidistrict Litigation for coordinated or consolidated pretrial proceedings pursuant to 28
U.S.C. § 1407. Upon completion of the pretrial proceedings related to a civil action as
3

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 4 of 10

1

determined by this Court, the case shall be transferred pursuant to 28 U.S.C. § 1404(a) or

2

§ 1406(a) to the District Court identified in the Short Form Complaint or Amended Short

3

Form Complaint, provided the parties choose not to waive Lexecon, Inc. v. Milberg Weiss

4

Bershad Hynes & Lerach, 523 U.S. 26 (1998). The fact that a case was filed directly in

5

this District and MDL proceeding shall not constitute a determination by this Court that

6

jurisdiction or venue are proper in this District, and shall not result in this Court being

7

deemed the “transferor court” for purposes of this MDL. In addition, filing a Short Form

8

Complaint or Amended Short Form Complaint in this District shall have no impact on the

9

conflict of law rules to be applied to the case. Instead, the law of the jurisdiction where

10

the case is ultimately transferred will govern any conflict of law. Prior to transfer,

11

Defendants may object to the district specified in the Short Form Complaint or Amended

12

Short Form Complaint, based on venue or jurisdiction (including a lack of personal

13

jurisdiction based on Daimler AG v. Bauman, 134 S. Ct. 746 (2014)), and propose an

14

alternative jurisdiction for the Court’s consideration.

15

Subject to the conditions set forth in this order, Defendant C.R. Bard, Inc. and Bard

16

Peripheral Vascular, Inc. (collectively “Bard”) waive service of process in cases filed in

17

this Court using the Short Form Complaint or Amended Short Form Complaint and in

18

which they are named as defendants and one or more IVC filter products either

19

manufactured or distributed by Bard is alleged to be at issue. For such cases, Plaintiffs

20

shall send a Short Form Complaint or Amended Short Form Complaint and a request for

21

waiver of service pursuant to the provisions of Fed. R. Civ. P. 4 to Richard B. North, Jr.

22

by email to [e-mail]; [e-mail]; and

23

[e-mail]. Counsel for Bard shall return the signed waiver

24

requests to the Court within the time permitted by Fed. R. Civ. P. 4. Plaintiffs submitting

25

a request for waiver shall not seek to hold Bard in default for failure to timely answer or

26

otherwise respond to a complaint in which service has been accomplished pursuant to the

27
28
4

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 5 of 10

1

terms of this order without first giving Bard written notice of the alleged default and ten

2

business days in which to cure any alleged default.

3

Prior to a Plaintiff’s attorney filing a Short Form Complaint or Amended Short

4

Form Complaint in this Court, that attorney must register for or already have a District of

5

Arizona CM/ECF log-in name and password. If the Plaintiff’s attorney does not already

6

have a District of Arizona CM/ECF log-in name and password, that attorney must file the

7

Short Form Complaint or Amended Short Form Complaint in paper form with the Clerk

8

of Court and simultaneously file an Application of Attorney for Admission to Practice Pro

9

Hac Vice pursuant to LRCiv 83.1(b)(2) (including all necessary attachments and filing

10

fee).

11

Additionally, with respect to cases which are originally filed in courts other than

12

this Court which are then subsequently transferred to MDL 2641 pursuant to 28 U.S.C.

13

§ 1407, Defendants may file an Answer and General Denial with Respect to Cases

14

Subsequently Transferred to MDL 2641, incorporating the defenses and denials set forth

15

in the Master Responsive Pleading and generally denying the plantiffs’ allegations. This

16

short-form answer shall serve as the responsive pleading. Defendants shall have 60 days

17

from the date any such case is opened in this Court to file any motion for failure to state a

18

claim upon which relief may be granted pursuant to Rule 12(b)(6) and 12(h)(2), and the

19

plaintiff(s) shall have 30 days to respond.

20

Dated this 16th day of March, 2016.

21
22
23
24
25
26
27
28
5

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 6 of 10

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

IN RE BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

9

No. MD-15-02641-PHX-DGC
AMENDED MASTER SHORT FORM
COMPLAINT FOR DAMAGES FOR
INDIVIDUAL CLAIMS AND DEMAND
FOR JURY TRIAL

10
11
12

Plaintiff(s) named below, for their Complaint against Defendants named below,

13

incorporate the Master Complaint for Damages in MDL 2641 by reference (Doc. 364).

14

Plaintiff(s) further show the Court as follows:

15

1.

16
17

Plaintiff/Deceased Party:
________________________________________________________________

2.

Spousal Plaintiff/Deceased Party’s spouse or other party making loss of

18

consortium claim:

19

________________________________________________________________

20

3.

Other Plaintiff and capacity (i.e., administrator, executor, guardian,

21

conservator):

22

________________________________________________________________

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 7 of 10

1

4.

Plaintiff’s/Deceased Party’s state(s) [if more than one Plaintiff] of residence at

2

the time of implant:

3

________________________________________________________________

4

5.

Plaintiff’s/Deceased Party’s state(s) [if more than one Plaintiff] of residence at

5

the time of injury:

6

________________________________________________________________

7

6.

________________________________________________________________

8
9

7.

District Court and Division in which venue would be proper absent direct filing:
________________________________________________________________

10
11

Plaintiff’s current state(s) [if more than one Plaintiff] of residence:

8.

Defendants (check Defendants against whom Complaint is made):

12

□

C.R. Bard Inc.

13

□

Bard Peripheral Vascular, Inc.

14

9.

Basis of Jurisdiction:

15

□

Diversity of Citizenship

16

□

Other: ________________________________________________

17

a.

Other allegations of jurisdiction and venue not expressed in Master

18

Complaint:

19

________________________________________________________________

20

________________________________________________________________

21

________________________________________________________________

22
-2-

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 8 of 10

1

10.

Defendants’ Inferior Vena Cava Filter(s) about which Plaintiff(s) is making a

2

claim (Check applicable Inferior Vena Cava Filter(s)):

3

□

Recovery® Vena Cava Filter

4

□

G2® Vena Cava Filter

5

G2® Express (G2®X) Vena Cava Filter

6

Eclipse® Vena Cava Filter

7

Meridian® Vena Cava Filter

8

Denali® Vena Cava Filter

9

Other: ____________________________________________________

10

11.

Date of Implantation as to each product:

11

________________________________________________________________

12

________________________________________________________________

13

12.

Counts in the Master Complaint brought by Plaintiff(s):

14

□

Count I:

15

□

Count II:

16

Strict Products Liability – Manufacturing Defect
Strict Products Liability – Information Defect (Failure to

Warn)

17

□

Count III:

Strict Products Liability – Design Defect

18

□

Count IV:

Negligence - Design

19

□

Count V:

Negligence - Manufacture

20

□

Count VI:

Negligence – Failure to Recall/Retrofit

21

□

Count VII:

Negligence – Failure to Warn

22

□

Count VIII: Negligent Misrepresentation
-3-

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 9 of 10

1

□

Count IX:

Negligence Per Se

2

□

Count X:

Breach of Express Warranty

3

□

Count XI:

Breach of Implied Warranty

4

□

Count XII:

Fraudulent Misrepresentation

5

□

Count XIII: Fraudulent Concealment

6

□

Count XIV: Violations of Applicable ________________ (insert state)

7

Law Prohibiting Consumer Fraud and Unfair and Deceptive Trade

8

Practices

9

□

Count XV:

Loss of Consortium

10

□

Count XVI: Wrongful Death

11

□

Count XVII: Survival

12

□

Punitive Damages

13

□

Other(s):

___________________ (please state the facts supporting

14

this Count in the space immediately below)

15

__________________________________________________________

16

__________________________________________________________

17

__________________________________________________________

18

__________________________________________________________

19

__________________________________________________________

20

13.

Jury Trial demanded for all issues so triable?

21

□

Yes

22

□

No
-4-

Case 2:15-md-02641-DGC Document 1108 Filed 03/17/16 Page 10 of 10

1

RESPECTFULLY SUBMITTED this ____ day of March, 2016.

2

[SIGNATURE BLOCK]

3

By:

/s/
[Attorney name/address]

4
5
6

I hereby certify that on this ____ day of March, 2016, I electronically transmitted the

7

attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal

8

of a Notice of Electronic Filing.

9

/s/

10
11

5220248v1/26997-0001

12
13
14
15
16
17
18
19
20
21
22
-5-

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 1 of 15

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

9

MDL No. 15-02641 PHX DGC
CASE MANAGEMENT ORDER
NO. 9 __

10
(ELECTRONICALLY STORED
INFORMATION AND DOCUMENT
FORM AND FORMAT
PRODUCTION PROTOCOL)

11
12
13

This Order shall govern the production of electronically stored information (“ESI”)

14
15
16
17
18
19
20

and paper (“hardcopy”) documents. Subject to the protective order entered in In re Bard
IVC Filters Products Liability Litigation (this “Action”), this Order applies to all future
document productions in this Action, including all cases transferred to this Court in the
original Transfer Order from the Judicial Panel on Multidistrict Litigation, those
subsequently transferred as tag-along actions, and all cases directly filed in or removed to
this MDL.
I.

21
22
23
24
25
26
27
28

A.

General Provisions

Scope
The procedures and protocols outlined herein govern the production of ESI and

paper documents. For any other materials, the Parties shall meet and confer regarding the
form and format of production for specific items or categories of items. Nothing in this
protocol shall limit a party’s right to seek or object to discovery as set out in applicable
rules or to object to the authenticity or admissibility of any hardcopy document or ESI
produced in accordance with this Order.

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 2 of 15

1

B.

Prior Productions

2

For purposes of this Case Management Order, the term “prior productions” means

3

all non-case specific ESI and hardcopy documents previously produced by Defendants to

4

Plaintiffs’ Co-Lead Counsel that bear the following Bates prefixes:

5

 BPV-17

6

 BPVE

7

 BPVEFILTER

8

 BPV-CIV-COMPLAINT

9

 BPV-COMP

10

 BPV-COMP-ET

11

 BPV-COMP-TW

12

 BPV-DEP

13

 BPV-EXPERT DISCL

14

 BPV-DISCOV

15

 BPV-EXPERT

16

 BPV-TRIAL-TRANS

17

 BPV-TRIAL-EXHIBIT

18

 YH

19

 YORK-SUBPOENA

20

 BPV-INSURANCE-POLICIES

21

 KAUFMAN-SUBPOENA

22

 FDA_PRODUCTION

23

 BPV-HEARING-TRANS

24

 BPV-FULLER

25

C.

Designated ESI Liaison

26

Each side shall designate one or more individuals as Designated ESI Liaison(s) for

27

purposes of meeting and conferring with the other parties and of attending Court hearings

28

on the subject of relevant ESI. The Designated ESI Liaison shall be reasonably prepared
2

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 3 of 15

1

to speak about and to explain the party’s relevant electronic systems and capabilities and

2

the technical aspects of the manner in which the party has responded to e-discovery,

3

including (as appropriate) relevant ESI retrieval technology and search methodology.

4

D.

Inadvertent Production

5

The inadvertent production of any material constituting or containing attorney-

6

client privileged information or work-product, or constituting or containing information

7

protected by applicable privacy laws or regulations, shall be governed by provisions

8

contained in the Protective Order entered in this action.

9

E.

10
11

Non-Discoverable ESI and Non-Readily Accessible Data Resources
1.

The following categories of ESI are presumed to be inaccessible and not

discoverable:

12

a.

Deleted, “slack,” fragmented, or unallocated data on hard drives;

13

b.

Random access memory (RAM) or other ephemeral data;

14

c.

On-line access data such as (without limitation) temporary internet

15

files, history files, cache files, and cookies.

16

2.

The parties will meet and confer in good faith regarding the collection

17

and/or production of data from these sources.

18

F.

19
20

Meet and Confer for Disputes
Prior to bringing any dispute regarding ESI to the Court, the parties must meet and

confer in good faith in an attempt to resolve the dispute.

21
22
23

II.
A.

Electronically Stored Information

Production in Reasonably Usable Form
1.

Reasonably Usable Form: The parties shall produce ESI in a reasonably

24

usable form. Except as stated in Paragraphs B & C below or as agreed hereafter by the

25

parties, such reasonably usable form shall presumptively be the single-page tagged image

26

file format (“TIFF”) with extracted or OCR text and associated metadata set out in

27

Attachment A, which is incorporated in full as part of this Order. A Receiving Party may

28

request production of specifically identified ESI, including ESI produced originally in
3

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 4 of 15

1

TIFF form (identified by beginning and ending Bates numbers), in native form. If the

2

Producing Party objects to production in native form, the parties shall meet and confer

3

regarding the form of production for the specifically identified ESI. For any dispute, the

4

Receiving Party shall bear the burden to demonstrate good cause for the production in

5

native form and the Producing Party shall bear the burden of proving any undue hardship.

6

2.

Redactions:

The Producing Party may redact from any TIFF image,

7

metadata field, or native file material that is protected from disclosure by an applicable

8

privilege or immunity, HIPAA regulations, FDA regulations, or other applicable privacy

9

law or regulation, that contains commercially sensitive, purely personal, or proprietary

10

information not at issue in this Action, or that the Protective Order entered in this Action

11

allows to be redacted. Each redaction shall be indicated clearly. Documents that have

12

been redacted on the basis of attorney-client privilege, the work-product doctrine, or any

13

other applicable legal privilege or immunity shall be identified on a party’s “privilege

14

log,” with a description of the reason(s) for redaction.

15

documents that are redacted on bases other than the foregoing privileges shall be

16

identified on a separate “redaction log,” with a description of the reason(s) for redaction.

17

For all prior productions, if the basis for the redaction is not obvious from the face of the

18

document, Plaintiffs may request that Defendants identify the basis for the redaction of a

19

particular document. Such request must by identify the document by its beginning and

20

ending Bates numbers. For each such request, Defendants shall provide clarification

21

within a reasonable time after receiving the request.

22

3.

For all future productions,

Color Documents: Each party may make requests, for good cause, for

23

production of specifically identified documents (i.e., identified by beginning and ending

24

Bates numbers) in color.

25

B.

Electronic Spreadsheets, Presentations, and Multimedia Files

26

Electronic spreadsheets (e.g., Excel), electronic presentations (e.g., PowerPoint),

27

and audio/video multimedia files that have been identified as responsive shall be produced

28

in native form, unless they are authorized to be redacted in accordance with Paragraph A.2
4

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 5 of 15

1

above. After such redactions, the Producing Party either shall produce the redacted file in

2

the reasonably usable form set out in Attachment A or shall produce the redacted copy in

3

native format.

4

C.

Additional Procedures for Native Form Files

5

Any party seeking to use, in any proceeding in this Action, files produced in native

6

form shall do so subject to the following: The original production number and

7

confidentiality designation shall be stamped on each page of any TIFF image or hardcopy

8

document representing the original native-format file. Use of a file in native form or use

9

of a TIFF image or hardcopy document representing the original native-form file shall

10

constitute a representation that the file being used is an accurate depiction of the original

11

native-form file.

12

D.

13

Email Threading
1.

Email threads are email communications that contain prior or lesser-

14

included email communications that also may exist separately in the party’s electronic

15

files. A most inclusive email thread is one that contains all of the prior or lesser-included

16

emails, including attachments, for that branch of the email thread. Each party may

17

produce (or list on any required privilege log) only the most inclusive email threads as

18

long as the most inclusive email thread includes all non-produced emails that are part of

19

the same string.

20

2.

Following production of the most-inclusive email threads, a Receiving Party

21

may request the metadata associated with individual prior or lesser-included emails within

22

the identified most-inclusive email threads.

23

reasonably in responding to any such requests.

24

E.

The Producing Party shall cooperate

Avoidance of Duplicate Production

25

“Duplicate ESI” means files that are exact duplicates using an industry-accepted

26

file hash algorithm. The Producing Party need produce only a single copy of responsive

27

Duplicate ESI. A Producing Party shall take reasonable steps to de-duplicate ESI globally

28

(i.e., both within a particular custodian’s files and across all custodians). Entire document
5

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 6 of 15

1

families may constitute Duplicate ESI. De-duplication shall not break apart families.

2

When the same Duplicate ESI exists in the files of multiple custodians, the Producing

3

Party shall include with the load file for the ESI the names of all Custodians associated

4

with the duplicate ESI.

5

III.

Documents That Exist Only in Hardcopy (Paper) Form

6

A party may produce documents that exist only in hardcopy form either (a) in their

7

original hardcopy form or (b) scanned and produced in TIFF form as set out in

8

Attachment A. If the Producing Party elects to scan and to produce hardcopy documents,

9

the scanning must be done such that the resulting image includes all information on the

10

original hardcopy document. The production of original hardcopy documents in TIFF

11

form does not otherwise require that the scanned images be treated as ESI.

12

Dated this 31st day of March, 2016.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 7 of 15

1

Attachment A:

2

The following protocols apply to any ESI or hardcopy documents produced in this

3

litigation:

4

(a)

Image Files: Files produced in *.tif image form will be single page black

5

and white *.tif files at 300 DPI, Group IV compression. To the extent possible, original

6

orientation will be maintained (i.e., portrait-to-portrait and landscape-to-landscape). Each

7

*.tif file will be assigned a unique name matching the production number of the

8

corresponding page. Production (“Bates”) numbers shall be endorsed on the lower right

9

corner of all images. This number shall be a unique, consistently formatted identifier that

10

will:

11

i.

be consistent across the production;

12

ii.

contain no special characters; and

13

iii.

be numerically sequential within a given file.

14

Bates numbers should include an alpha prefix and an 8 digit number (e.g., ABC-

15

00000001). The number of digits in the numeric portion of the Bates number format

16

should not change in subsequent productions. Notwithstanding the foregoing, continued

17

use of any of the following Bates prefixes shall be permitted under this Protocol:

18

 BPV-17

19

 BPVE

20

 BPVEFILTER

21

 BPV-CIV-COMPLAINT

22

 BPV-COMP

23

 BPV-COMP-ET

24

 BPV-COMP-TW

25

 BPV-DEP

26

 BPV-EXPERT DISCL

27

 BPV-DISCOV

28

 BPV-EXPERT
7

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 8 of 15

1

 BPV-TRIAL-TRANS

2

 BPV-TRIAL-EXHIBIT

3

 YH

4

 YORK-SUBPOENA

5

 BPV-INSURANCE-POLICIES

6

 KAUFMAN-SUBPOENA

7

 FDA_PRODUCTION

8

 BPV-HEARING-TRANS

9

 BPV-FULLER

10

Confidentiality designations, if any, will be endorsed on the lower left corner of all images

11

and shall not obscure any portion of the original file

12

(b)

File Text: Except where ESI contains text that has been redacted under

13

assertion of privilege or other protection from disclosure, full extracted text will be

14

provided in the form of a single *.txt file for each file (i.e., not one *.txt file per *.tif

15

image). Where ESI contains text that has been redacted under assertion of privilege or

16

other protection from disclosure, the redacted *.tif image will be OCR’d and file-level

17

OCR text will be provided in lieu of extracted text. Searchable text will be produced as

18

file-level multi-page ASCII text files with the text file named to match the beginning

19

production number of the file. The full path of the text file must be provided in the *.dat

20

data load file.

21

(c)

Word Processing Files: Word processing files, including without limitation

22

Microsoft Word files (*.doc and *.docx), will be produced in *.tif image form, as

23

described in subsection (a). If a word processing file includes any tracked changes or

24

comments in its native form, the *.tif image will include any tracked changes and

25

comments. If the Receiving Party requests the native form production of any word

26

processing file that includes tracked changes or comments in its native form (identified by

27

beginning and ending Bates numbers), the Producing Party shall produce the particular

28

file in native form unless the Producing Party demonstrates that the request is
8

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 9 of 15

1

unreasonable or unduly burdensome. Each party may make requests, for good cause, for

2

production of other specifically identified Word Processing Files in native format in

3

accordance with Section II.A.1 of this Order.

4

(d)

Presentation Files:

Presentation files, including without limitation

5

Microsoft PowerPoint files (*.ppt and *.pptx), will be produced in native form. To the

6

extent that such files are produced as *.tif images, in accordance with subsection (a), for

7

purposes of redaction and such files contain comments, hidden slides, speakers’ notes, and

8

similar data, the presentation files shall be produced in the following formats: (i) first, as

9

*.tif images of “clean” final versions of each slide (after all animations, etc.) in the

10

presentation, and (ii) second, as *.tif images that display all comments, hidden slides,

11

speakers’ notes, and similar data in such files. The second version shall be produced and

12

bates labeled immediately following the “clean” version of the file.

13

(e)

Spreadsheet or Worksheet Files:

Spreadsheet files, including without

14

limitation Microsoft Excel files (*.xls or *.xlsx), will be produced in native form. To the

15

extent that such files are produced as *.tif images, in accordance with subsection (a), for

16

purposes of redaction and such files contain hidden rows, columns, and worksheets, the

17

spreadsheet files shall be produced in the following formats: (i) first, as *.tif images of

18

“clean” versions of the file without hidden rows, columns, and worksheets; and

19

(ii) second, as *.tif images that display hidden rows, columns, and worksheets, if any, in

20

such files. The second version shall be produced and bates labeled immediately following

21

the “clean” version of the file.

22

(f)

Parent-Child Relationships: Parent-child relationships (e.g., the associations

23

between emails and their attachments) shall be preserved.

24

attachments will be produced as independent files immediately following the parent email

25

or ESI record. Parent-child relationships will be identified in the data load file pursuant to

26

Paragraph (n) below.

27
28

(g)

Email and other ESI

Dynamic Fields: Where documents have an automatically updated date and

time, file names, files paths, or similar information that, when processed, would be
9

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 10 of 15

1

inaccurate for how the document was used in the ordinary course of business, the

2

Producing Party shall use best efforts to produce the document with placeholders for those

3

fields such as: “Auto Date,” “Auto File Name,” “Auto File Path,” or similar words that

4

describe the automatic field.

5
6
7

(h)

English Language: If no English version of a file is available, the Producing

Party shall not have an obligation to produce an English translation of the data.
(i)

Embedded Objects: Some Microsoft Office and .RTF files may contain

8

embedded files, including but not limited to Microsoft Excel, Word, PowerPoint, Project,

9

Outlook, Access, and PDF. Subject to claims of privilege and immunity, as applicable,

10

the Producing Party shall use reasonable efforts to extract as separate files those identified

11

file types, where appropriate, and those shall be produced as attachments to the file in

12

which they were embedded.

13

(j)

Compressed Files: Compressed file types (i.e., .CAB, .GZ, .TAR. .Z, .ZIP)

14

shall be decompressed in a reiterative manner to ensure that a zip within a zip is

15

decompressed into the lowest possible compression resulting in individual files. Files

16

included in compressed file type that are attached to another file shall be individually

17

identified as related to the “parent” document in the data load file pursuant to Paragraph

18

(n) below.

19

(k)

Encrypted Files: The Producing Party will take reasonable steps, prior to

20

production, to unencrypt any discoverable ESI that exists in encrypted format (e.g.,

21

because password-protected) and that can be reasonably unencrypted.

22

(l)

Non-Viewable Files:

During document review, certain documents are

23

opened that are not viewable in the default HTML rendered format. In such instances, the

24

Producing Party shall attempt to create a TIFF image with a viewable image.

25

unsuccessful, the Producing Party shall attempt to open the document with a native

26

viewer. If the file cannot be viewed via any of these methods, the Producing Party shall

27

attempt to procure a replacement of the file from the original source location. If the

28

replacement yields the same issues, the Producing Party shall (i) identify the file in a log
10

If

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 11 of 15

1

of “corrupt files” to be produced to the Receiving Party and (ii) maintain the native file for

2

request for production or review by the Receiving Party in accordance with this Order.

3
4

(m)

Scanned Hardcopy Documents:
i.

In scanning hardcopy documents, multiple distinct documents should

5

not be merged into a single record, and single documents should not

6

be split into multiple records (i.e., hard copy documents should be

7

logically unitized).

8

ii.

If a Producing Party is requested, and agrees, to provide OCR text for

9

scanned images of hard copy documents, OCR should be performed

10

on a document level and be provided in document-level *.txt files

11

named to match the production number of the first page of the

12

document to which the OCR text corresponds. OCR text should not

13

be delivered in the data load file or any other delimited text file.

14

Except where hard copy documents contain text that has been

15

redacted under assertion of privilege or other protection from

16

disclosure, a Producing Party may not withhold from production any

17

OCR text that the party has in its possession, custody or control for

18

scanned images of hard copy documents that the party is producing.

19

Where hard copy documents contain text that has been redacted

20

under assertion of privilege or other protection from disclosure, and

21

the Producing Party has in its possession OCR text for said

22

documents, the redacted *tif image will be OCR’d and file-level

23

OCR text will be provided in lieu of the original OCR text.

24

iii.

In the case of an organized compilation of separate hardcopy

25

documents -- for example, a binder containing several separate

26

documents behind numbered tabs -- the document behind each tab

27

should be scanned separately, but the relationship among the

28
11

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 12 of 15

1

documents in the binder should be reflected in proper coding of the

2

family fields set out below.

3

(n)

Production Numbers: The Producing Party shall take reasonable steps to

4

ensure that attachments to documents or electronic files are assigned production numbers

5

that directly follow the production numbers on the documents or files to which they were

6

attached. If a production number or set of production numbers is skipped, the skipped

7

number or set of numbers shall be noted. In addition, wherever possible, each *.tif image

8

will have its assigned production number electronically “burned” onto the image.

9
10

(o)

Data and Image Load Files for ESI:
i.

Load Files Required: Unless otherwise agreed, each production will

11

include a data load file in Concordance (*.dat) format produced in

12

ASCII and an image load file in Opticon (*.opt) format.

13

ii.

14

Load File Formats:
a)

Load file names should contain the volume name of the

15

production media. Additional descriptive information may be

16

provided after the volume name. For example, both

17

ABC001.dat or ABC001_metadata.dat would be acceptable.

18

b)

Unless other delimiters are specified, any fielded data

19

provided in a load file should use Concordance default

20

delimiters. Semicolon (;) should be used as multi-entry

21

separator.

22

c)

Any delimited text file containing fielded data should contain

23

in the first line a list of the fields provided in the order in

24

which they are organized in the file.

25

iii.

Metadata Fields to Be Included in Data Load File: For all ESI

26

produced, the following metadata fields for each file, if available at

27

the time of collection and processing and unless such metadata fields

28

are protected from disclosure by attorney-client privilege or work12

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 13 of 15

1

product immunity or otherwise prohibited from disclosure by law or

2

regulation, shall be provided in the data load file, except to the extent

3

that a file has been produced with redactions:

4

a)

FileName /FILENAME

5

b)

DocEmailFolder/LOCATIONS

6

c)

CreatedDateTime

7

d)

DocCreatedDateTime

8

e)

DateRecieved/DATERCVD and TIMERCVD (email only)

9

f)

StartBates/BEGDOC

10

g)

EndBates/ENDDOC

11

h)

StartAttach/BEGATTACH

12

i)

EndAttach/ENDATTACH

13

j)

PageCount/PGCOUNT

14

k)

FileExt/DOCEXT

15

l)

ModifiedDate/DATELASTMOD and TIMELASTMOD

16

m)

DateSent/DATESENT (email only)

17

n)

To/TO (email only)

18

o)

BCC (email only)

19

p)

CC (email only)

20

q)

AttachName (email only)

21

r)

Hash or MD5HASH

22

s)

Custodian/CUSTODIAN

23

t)

DocLink/NATIVEFILE

24

u)

TextLink/TEXTFILE

25

v)

AuthorFrom/DOCAUTHOR

26

w)

TitleEmailSubject/EMAIL SUBJECT

27

x)

RECORDTYPE

28

y)

DOCTYPE
13

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 14 of 15

1

z)

DOCDATE

2

aa)

PARENTDATE

3

bb)

DATELASTPRINT and TIMELASTPRINT

4

cc)

ORGANIZATIONS

5

dd)

COMMENTS

6

ee)

LASTAUTHOR

7

ff)

REVISION.

8
9

(p)

Data and Image Load Files for Hardcopy Productions:
i.

Load Files Required: Unless otherwise agreed, each production will

10

include a data load file in Concordance (*.dat) format and an image

11

load file in Opticon (*.opt) or Ipro (*.lfp) format.

12

ii.

13

Load File Formats:
a)

Load file names should contain the volume name of the

14

production media. Additional descriptive information may be

15

provided after the volume name. For example, both

16

ABC001.dat or ABC001_metadata.dat would be acceptable.

17

b)

Unless other delimiters are specified, any fielded data

18

provided in a load file should use Concordance default

19

delimiters. Semicolon (;) should be used as multi-entry

20

separator.

21

c)

Any delimited text file containing fielded data should contain

22

in the first line a list of the fields provided in the order in

23

which they are organized in the file.

24

iii.

Fields to Be Included in Data Load File: For all hardcopy documents

25

produced in *.tif format, the following fields, if available, shall be

26

provided in the data load file:

27

a)

StartBates

28

b)

EndBates
14

Case 2:15-md-02641-DGC Document 1259 Filed 03/31/16 Page 15 of 15

1

c)

StartAttach

2

d)

EndAttach

3

e)

Custodian

4

(q)

Files Produced in Native Format: Any electronic file produced in native file

5

format shall be given a file name consisting of a unique Bates number and, as applicable,

6

a confidentiality designation; for example, “ABC00000002_Confidential.”

7

native file produced, the production will include a *.tif image slipsheet indicating the

8

production number of the native file and the confidentiality designation, and stating “File

9

Provided Natively.” To the extent that it is available, the original file text shall be

10

provided in a file-level multi-page UTF-8 text file with a text path provided in the *.dat

11

file; otherwise the text contained on the slipsheet shall be provided in the *.txt file with

12

the text path provided in the *.dat file.

13

(r)

For each

Production of Media: Unless otherwise agreed, documents and ESI will be

14

produced on optical media (CD/DVD), external hard drive, secure FTP site, or similar

15

electronic format. Such media should have an alphanumeric volume name; if a hard drive

16

contains multiple volumes, each volume should be contained in an appropriately named

17

folder at the root of the drive. Volumes should be numbered consecutively (ABC001,

18

ABC002, etc.). Deliverable media should be labeled with the name of this action, the

19

identity of the Producing Party, and the following information: Volume name, production

20

range(s), and date of delivery.

21

(s)

Encryption of Production Media: To maximize the security of information

22

in transit, any media on which documents or electronic files are produced may be

23

encrypted by the Producing Party. In such cases, the Producing Party shall transmit the

24

encryption key or password to the Requesting Party, under separate cover,

25

contemporaneously with sending the encrypted media.

26
27

5184438v3/26997-0001

28
15

Case 2:15-md-02641-DGC Document 1319 Filed 04/01/16 Page 1 of 7

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 10

10
11
12

The Court held a third case management conference with the parties on

13
14

March 31, 2016.

The conference was scheduled to address ongoing matters and a

15

number of issues identified in Case Management Order No. 8 (“CMO 8”) (Doc. 519).

16

I.

Second Phase Discovery.

17

A.

Fact Discovery.

18

Fact discovery is under way. The parties reported that they have scheduled seven

19

depositions and are in the process of scheduling more. The parties also continue to

20

discuss a number of discovery issues that will be addressed later in this Order. The

21

parties are encouraged to continue exchanging relevant information on discovery topics

22

on which they agree, even if other issues need to be presented to the Court.

23

The Court asked the parties whether special deposition scheduling is needed, such

24

as blocking out specific weeks for depositions and double-tracking or triple-tracking

25

depositions. Counsel stated they do not believe such deposition scheduling is needed at

26

this time. The parties should provide an update on this issue in the status report to be

27

filed before the next case management conference.

28

Case 2:15-md-02641-DGC Document 1319 Filed 04/01/16 Page 2 of 7

1

B.

2

Case Management Order No. 4 (as amended) identifies 13 mature cases that are

3

not governed by the Master Complaint and Master Responsive Pleading and that are not

4

generally subject to ongoing discovery. After further discussion, the parties have agreed

5

that the Conn, Milton, and Mintz cases identified in Case Management Order No. 4

6

(Doc. 1108) should no longer be treated as mature cases. Rather, they will be treated as

7

all other cases in this MDL. The remaining 10 cases identified in CMO 4 will continue to

8

be treated as mature cases under that CMO. The parties should address these cases in the

9

joint status report they file before the next case management conference, and particularly

Mature Cases.

10

when these cases will be ready for remand.

11

II.

Bellwether Selection Process.

12

Consistent with the direction in CMO 8, the parties have addressed an appropriate

13

bellwether selection process. They have submitted a stipulation related to the process

14

(Doc. 923), and a stipulation regarding fact sheets to be exchanged during the process

15

(Doc. 1153).

16

The Court discussed the proposed procedures and fact sheets with the parties,

17

making some suggestions for modifications. The parties will make modifications to their

18

stipulations and, by April 15, 2016, provide the Court with a stipulated case management

19

order to govern the bellwether selection process and fact sheets.

20

As part of this work, the parties will provide the Court with a stipulated order

21

regarding the collection of records.

22

April 15, 2016.

This stipulated order will be provided by

23

While discussing the bellwether process, the Court discussed the issue of Lexecon

24

waivers. The parties will confer to see if they can agree on a procedure for dealing with

25

Lexecon waivers. Plaintiffs’ counsel are of the view that such issues should be addressed

26

up front so as not to interfere with the selection of cases after much work has been

27

invested in the bellwether pool.

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concern about choosing the Bellwether pool solely from cases in which Plaintiffs have

Defense counsel does not disagree, but expressed

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agreed to waive Lexecon. The Court described for the parties the approaches taken in a

2

number of other MDL cases. The parties will confer to see if they can reach agreement.

3

The Court will also do inquire further into cross-designations for trials in transferor

4

districts under 28 U.S.C. § 292(b) and (d).

5

III.

ESI and Previously Searched Custodians.

6

The parties have filed a joint motion to extend the deadline in CMO 8 for

7

presenting a matrix to the Court outlining ESI disagreements. Doc. 1151. The motion

8

notes that the parties have been working on this issue diligently, and requests a new

9

deadline for submitting disagreements to the Court by May 16, 2016. The Court will

10

grant the joint motion, but advised the parties that it will not be inclined to grant

11

additional extensions. ESI issues need to be resolved soon. ESI production and review

12

tends to take a significant amount of time, and if ESI issues are not resolved soon, there

13

may be too little time remaining in the discovery schedule for a thorough production and

14

review of ESI. The parties will also continue to address the issue of new custodians

15

(CMO 8, § IV) and submit any disagreements to the Court, in a matrix, by May 16, 2016.

16

IV.

FDA Inspection and Warning Letter.

17

The Court has reviewed the memoranda and other materials provided by the

18

parties with respect to discovery related to the FDA warning letter. See Docs. 693, 697,

19

850, 989, 1152. The Court provided initial feedback on the issues raised. The Court

20

views discovery related to under-reporting or non-reporting of problems with retrievable

21

filters to be clearly relevant to this case. Actual failure rates will be relevant to Plaintiffs’

22

negligence and product defect claims.

23

Defendants concerning failure rates will be relevant to Plaintiffs’ claims for fraud and

24

misrepresentation.

25

disproportionate in light of the factors set forth in Rule 26(b)(1).

Evidence regarding representations made by

The Court does not view discovery on these issues to be

26

At the same time, the Court sees little relevancy in the Recovery Cone issues. The

27

Recovery Cone has always been available for retrieval of Defendants’ filters, the FDA

28

has now approved use of the Recovery Cone, and no claim in this case is based on

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alleged defects in the Recovery Cone. Defendants have offered to produce Ms. Edwards

2

for a deposition on the Recovery Cone issue, and the Court agrees, but the Court believes

3

that other discovery is not warranted.

4
5

In addition to this guidance, the Court noted that the three or four employees who
report to Chad Modra should be deposed. They appear to have relevant information.

6

With this feedback in hand, the parties are to discuss the specific discovery

7

requests of Plaintiffs with respect to the under-reporting issue. If they are unable to reach

8

agreement on appropriate discovery, the parties should provide the Court with a matrix

9

setting forth their specific areas of disagreement by April 15, 2016.

10
11
12

V.

Discovery Regarding Simon Nitenol Filter (“SNF”).
The Court has reviewed the matrix provided by the parties on this issue.

Doc. 1161. The Court provided guidance during the case management conference.

13

The Court does not believe that discovery related to the design or testing of the

14

SNF is relevant to this case. Plaintiffs do not contend that the SNF is defective. To the

15

contrary, they intend to argue that the SNF was a safe and effective product, that

16

retrievable filters were less safe, and that Defendants made misrepresentations to the

17

FDA and the public when they asserted that the retrievable filters were substantially

18

equivalent to the SNF or as safe as the SNF. In light of these positions, the actual design

19

and testing of the SNF will not be at issue in this case.

20

The Court also concludes, however, that sales and marketing materials related to

21

the SNF, documents comparing filter performance and failure rates to the SNF, and

22

internal communications on these subjects are relevant. At the same time, it would be

23

unduly burdensome to require Defendants to produce every document related to sales and

24

marketing of SNF over its 20-plus year life, or every communication related to that

25

subject. The Court instructed the parties to confer and attempt to reach agreement on

26

appropriate discovery with respect to these subjects. If the parties are unable to agree,

27

they should include this subject in the matrix to be submitted to the Court on

28

April 15, 2016. Plaintiffs should be precise in the discovery they seek so that the matrix

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will be as focused as possible.

2

The parties have reached agreement on regulatory communications relating to the

3

SNF. Defendants will be providing discovery on this issue.

4

VI.

Depositions of Previously Deposed Witnesses.

5

The parties are in the process of negotiating a deposition protocol for the case.

6

This protocol presumably will include agreement on depositions of previously deposed

7

witnesses and witnesses related to the Kay Fuller issue. The parties will provide a

8

stipulated deposition protocol to the Court by April 15, 2016.

9

VII.

Privilege Log Issues.

10

The Court appreciates the parties’ efforts to resolve privilege log issues. The

11

Court has reviewed the status reports provided by the parties (see Docs. 705, 984), as

12

well as Plaintiffs’ motion to compel (Doc. 1214).

13

The parties have been unable to reach agreement on 133 documents identified

14

during their first sampling effort. Plaintiffs have filed a motion to compel with respect to

15

these documents (Doc. 1214) that identifies several specific legal issues and attaches a

16

spreadsheet identifying the documents and setting forth a summary of Plaintiffs’ position

17

with respect to each document. Rather than simply completing the briefing on this issue,

18

the Court directed the parties to take the following steps.

19

By the close of business on April 4, 2016, Plaintiffs shall identify for Defendants

20

the specific legal issues addressed in Plaintiffs’ motion to compel.1 In addition, with

21

respect to each of these issues, Plaintiffs shall identify three documents from among the

22

133 documents still in dispute.

23

By April 11, 2016, Defendants shall file a memorandum with the Court

24

addressing the specific legal categories identified by Plaintiff. Defendants shall set forth

25

their legal arguments on each of these issues. On the same day, Defendants shall provide

26

Plaintiffs with the identification of two additional documents for each of the legal

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1

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The Court sees discrete issues in the following sections of Plaintiffs’ motion:
IV.B.1, IV.B.2, IV.B.3.a, IV.B.3.b, IV.B.3.c, IV.B.3.d, IV.B.3.e, and IV.C, but Plaintiffs
are free to narrow the list.
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Case 2:15-md-02641-DGC Document 1319 Filed 04/01/16 Page 6 of 7

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categories, chosen from the 133 documents in dispute, as well as a draft matrix setting

2

forth Defendants’ arguments (in summary form – the memoranda need not be repeated)

3

with respect to the five documents chosen by the parties for each legal category.

4

By April 22, 2016, Plaintiffs shall file a reply memorandum which addresses the

5

specific legal issues identified for Defendants on April 4, 2016. Plaintiffs shall attach to

6

the memorandum the matrix which sets forth, in summary form, the parties’ respective

7

arguments with respect to the five documents chosen for each of the legal issues

8

addressed in the briefing. Plaintiffs’ counsel shall provide defense counsel with a draft of

9

the matrix two days before this filing so that defense counsel can make any needed

10

adjustments to their section of the matrix. On April 22, 2016, Defendants shall provide

11

the Court with in camera copies of the documents listed in the matrix.

12

The Court will enter an order on the legal issues and the five documents chosen

13

for each issue. The intent will be to provide guidance to the parties concerning the

14

Court’s view of privilege and work product issues, hopefully to help the parties in

15

resolving additional disagreements.

16

The Court and parties also discussed part B of the parties’ joint report. Doc. 705.

17

The Court directed the parties to engage in the process described in part B, but only with

18

respect to Plaintiffs’ seven proposed categories. The Court sees no purpose in addressing

19

Bard’s proposed categories. The Court agrees that the parties should provide a joint

20

report to the Court by May 27, 2016, describing their progress and the number of

21

documents that remain in dispute. If the number is large, the Court most likely will

22

appoint a special master to work with the parties in resolving the privilege log issues.

23

VIII. Equitable Tolling.

24

Defendants have filed a brief on this issue. Doc. 1146. The parties will brief this

25

issue under the time limits set forth in the relevant rules. The Court will rule on it in due

26

course.

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IX.

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Next Case Management Conference.
The next Case Management Conference will be held on June 22, 2016 at

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10:00 a.m. The parties shall provide the Court with a joint status report on issues

2

mentioned in this order and any issues they wish to address at the conference by

3

June 15, 2016. If issues arise in the meantime that require prompt decision, the parties

4

should place a conference call to the Court.

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Dated this 1st day of April, 2016.

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Case 2:15-md-02641-DGC Document 1485 Filed 04/20/16 Page 1 of 9

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6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-DGC
SECOND AMENDED CASE
MANAGEMENT ORDER NO. 4

10

(Master Complaint, Master
Responsive Pleading, Use of Short
Form Complaint, Waiver of Service
for Bard Defendants, and Answer and
General Denial in Cases Subsequently
Transferred to MDL 2641)

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12
13
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15

The parties previously submitted a Master Long Form Complaint and Jury Demand

16

(previously docketed as Doc. 303-1) and a Master Responsive Pleading (previously

17

docketed as Doc. 303-3). The Court has reviewed these proposed pleadings, finds them

18

sufficient, and directs the Clerk to file them as separate documents in the Court's docket.1

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The parties have also submitted a proposed Second Amended Short Form Complaint, a

20

copy of which is attached to this order. The Court also finds this proposed pleading to be

21

sufficient.

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IT IS ORDERED:

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All allegations pled in the Master Complaint and all responses pled in the Master

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Responsive Pleading are deemed pled in any previously filed Complaint and Responsive

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Pleading in this MDL proceeding, except as expressly noted below. They are also deemed

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pled in any Short Form Complaint (attached to CMO No. 4, Doc. 363) or Second

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1

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The reference to “Federal Rule of Evidence 8” on the first page of the Master
Complaint shall be deemed to be a reference to Federal Rule of Civil Procedure 8.

Case 2:15-md-02641-DGC Document 1485 Filed 04/20/16 Page 2 of 9

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Amended Short Form Complaint (attached to this Order) and Entry of Appearance filed
after the entry of this order, except that the Master Complaint applies only against the
Defendant or Defendants identified in such future-filed Short Form or Second Amended
Short Form Complaints.
The following cases will not be governed by the Master Complaint and Master
Responsive Pleading, but will continue to be governed by the complaints (including any
amended complaints) and answers filed in the various transferor courts prior to transfer:

8
Plaintiff

Original Jurisdiction

1.

Cason, Pamela

GA – N.D. Ga.
1:12-cv-1288

2.

Coker, Jennifer

GA – N.D. Ga.
1:13-cv-515

3.

Ebert, Melissa

PA – E.D. Pa.
5:12-cv-1253

4.

Fox, Susan

TX – N.D. Tex.
3:14-cv-133

5.

Henley, Angela

WI – E.D. Wis.
2:14-cv-59

6.

Keen, Harry

PA – E.D. Pa.
5:13-cv-5361

7.

Ocasio, Denise

FL – M.D. Fla.
8:13-cv-1962

8.

Rivera (McClarty), Vicki

MI – E.D. Mich.
4:14-cv-13627

9.

Smith, Erin

TX – E.D. Tex.
1:13-cv-633

10. Tillman, Lessie

FL – M.D. Fla.
3:13-cv-222

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On or after December 28, 2015, any plaintiff whose case would be subject to
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transfer to MDL 2641 may file his or her case directly in this Court by using the Short
Form Complaint (Doc. 363). After April 20, 2016, Plaintiffs may use the use the Second
Amended Short Form Complaint attached to this Order. If such a case is filed in this
Court without the use of the Second Amended Short Form Complaint, Plaintiffs’ Co-Lead
Counsel shall promptly advise the filing party to file an amended complaint using the
Second Amended Short Form Complaint. If the filing party fails to do so, Plaintiffs’ CoLead Counsel shall promptly notify the Court.
Defendants are not required to file answers to Short Form, Amended Short Form,
or Second Amended Short Form Complaints. An Entry of Appearance shall constitute a
denial of all allegations in the Short Form, Amended Short Form, or Second Amended
Short Form Complaints except as herein provided, and an assertion of all defenses
included in the Master Responsive Pleading.

By filing an Entry of Appearance in

response to a Short Form, Amended Short Form, or Second Amended Short Form
Complaints, in lieu of an answer, Defendants do not waive any defenses, including
jurisdictional and service defenses.
Civil actions in this MDL were transferred to this Court by the Judicial Panel on
Multidistrict Litigation for coordinated or consolidated pretrial proceedings pursuant to 28
U.S.C. § 1407. Upon completion of the pretrial proceedings related to a civil action as
determined by this Court, the case shall be transferred pursuant to 28 U.S.C. § 1404(a) or
§ 1406(a) to the District Court identified in the Short Form, Amended Short Form, or
Second Amended Short Form Complaints, provided the parties choose not to waive
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). The fact
that a case was filed directly in this District and MDL proceeding shall not constitute a
determination by this Court that jurisdiction or venue are proper in this District, and shall
not result in this Court being deemed the “transferor court” for purposes of this MDL. In
addition, filing a Short Form, Amended Short Form, or Second Amended Short Form
Complaint in this District shall have no impact on the conflict of law rules to be applied to

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the case. Instead, the law of the jurisdiction where the case is ultimately transferred will
govern any conflict of law. Prior to transfer, Defendants may object to the district
specified in the Short Form, Amended Short Form, or Second Amended Short Form
Complaint, based on venue or jurisdiction (including a lack of personal jurisdiction based
on Daimler AG v. Bauman, 134 S. Ct. 746 (2014)), and propose an alternative jurisdiction
for the Court’s consideration.
Subject to the conditions set forth in this order, Defendant C.R. Bard, Inc. and Bard
Peripheral Vascular, Inc. (collectively “Bard”) waive service of process in cases filed in
this Court using the Short Form, Amended Short Form, or Second Amended Short Form
Complaint and in which they are named as defendants and one or more IVC filter
products either manufactured or distributed by Bard is alleged to be at issue. For such
cases, Plaintiffs shall send a Short Form, Amended Short Form, or Second Amended
Short Form Complaint and a request for waiver of service pursuant to the provisions of
Fed. R. Civ. P. 4 to Richard B. North, Jr. by email to [e-mail];
[e-mail]; and [e-mail]. Counsel for
Bard shall return the signed waiver requests to the Court within the time permitted by Fed.
R. Civ. P. 4. Plaintiffs submitting a request for waiver shall not seek to hold Bard in
default for failure to timely answer or otherwise respond to a complaint in which service
has been accomplished pursuant to the terms of this order without first giving Bard written
notice of the alleged default and ten business days in which to cure any alleged default.
Prior to a Plaintiff’s attorney filing a Short Form, Amended Short Form, or Second
Amended Short Form Complaint in this Court, that attorney must register for or already
have a District of Arizona CM/ECF log-in name and password. If the Plaintiff’s attorney
does not already have a District of Arizona CM/ECF log-in name and password, that
attorney must file the Short Form, Amended Short Form, or Second Amended Short Form
Complaint in paper form with the Clerk of Court and simultaneously file an Application
of Attorney for Admission to Practice Pro Hac Vice pursuant to LRCiv 83.1(b)(2)

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(including all necessary attachments and filing fee).
Additionally, with respect to cases which are originally filed in courts other than
this Court which are then subsequently transferred to MDL 2641 pursuant to 28 U.S.C. §
1407, Defendants’ may file an Answer and General Denial with Respect to Cases
Subsequently Transferred to MDL 2641, incorporating the defenses and denials set forth
in the Master Answer and generally denying the plaintiffs’ allegations. This short-form
answer shall serve as the responsive pleading. Defendants shall have 60 days from the
date any such case is opened in this Court to file any motion for failure to state a claim
upon which relief may be granted pursuant to Rule 12(b)(6) and 12(h)(2), and the
plaintiff(s) shall have 30 days to respond.
Dated this 20th day of April, 2016.

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Case 2:15-md-02641-DGC Document 1662 Filed 05/05/16 Page 1 of 7

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2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 11
(Bellwether Selection Process)

10
11
12

Pursuant to the agreement of the parties (Doc. 1473), the Court enters this Case

13

Management Order No. 11 regarding the process for the selection of and discovery in the

14

first set of bellwether cases for this MDL.

15

I.

A.

16
17

Initial Plaintiff Pool.
The Initial Plaintiff Pool for this bellwether process includes all cases filed

and properly served upon Defendants in MDL 2641 as of April 1, 2016.1
B.

18

The parties will provide Plaintiff Profile Forms (“PPF”) and Defendants

19

Profile Forms (“DPF”) for each of the Initial Plaintiff Pool cases. For purposes of the

20

Initial Plaintiff Pool cases, the deadlines established in CMO No. 5 (Doc. 365) will be

21

expedited. All Plaintiff Profile Forms for cases in the Initial Plaintiff Pool must be

22

served within thirty (30) days of filing and service, and in no event later than

23

May 1, 2016; and the Defendants Profile Forms shall be served within forty (40) days

24

after the date of receipt of the PPF and, in no event later than June 9, 2016. Cases filed

25

after April 1, 2016 shall continue to be governed by the deadlines established in CMO

26

No. 5 (Doc. 365). In order to make the process as efficient as possible, the parties shall

27

1

28

The Initial Plaintiff Pool does not, however, include those cases which make up the
group of “Mature Cases” referenced in Case Management Order No. 8, Para. I (C)
[Doc. 519], with the exception of the Conn, Milton, and Mintz cases, which the Court
removed from that list in Case Management Order No. 10 [Doc. 1319].

Case 2:15-md-02641-DGC Document 1662 Filed 05/05/16 Page 2 of 7

1

provide their PPFs and DPFs on a rolling basis, as they are completed.

2

II.

3

PFS/DFS Group 1.
A.

By not later than June 29, 2016, the parties shall make a simultaneous

4

exchange of lists identifying twenty-four (24) representative cases each selected from the

5

Initial Plaintiff Pool . Those forty-eight (48) cases shall constitute PFS/DFS Group 1.

6

The lists exchanged by the parties shall be organized alphabetically by plaintiffs’ last

7

name and shall include the civil action number for each case.

8

B.

Should Plaintiffs and Defendants select one or more of the same cases

9

among their twenty-four (24) cases selected for PFS/DFS Group 1, thus resulting in a

10

total pool of fewer than forty-eight (48) plaintiffs, the parties will alternate to identify

11

additional plaintiffs to bring the pool to forty-eight (48), with Plaintiffs having the first

12

selection. The parties shall make simultaneous exchange of the additional selections to

13

complete the pool within 3 days of the initial simultaneous exchange set forth above.

14

C.

It is important for the use of the bellwether process that is contemplated by

15

this Order that both sides waive applicable venue and forum non conveniens challenges

16

for the cases in PFS/DFS Group 1 and stipulate that the initial scheduled trials can be

17

conducted in the District of Arizona without remanding any case to the transferor forum

18

under Lexecon v. Milberg Weiss (“Lexecon Waiver”). Accordingly, the selection of any

19

case for inclusion in PFS/DFS Group 1 constitutes a Lexecon Waiver by the side/party

20

selecting the case. Upon receipt of the list of cases from opposing counsel, each side will

21

have five (5) business days to notify the other side if they do not agree to waive Lexecon

22

with respect to any of the cases selected by the other side. Plaintiffs’ Co-Lead Counsel

23

and the Plaintiffs’ Steering Committee shall use best efforts to secure a Lexecon Waiver

24

for any case selected to be included in PFS/DFS Group 1 by Defendants. Defendants’

25

counsel shall use best efforts to secure a Lexecon Waiver by Defendants for any case

26

selected to be included in PFS/DFS Group 1 by Plaintiffs.

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If a plaintiff in a case selected for inclusion in PFS/DFS Group 1 by Defendants

28

does not provide a Lexecon Waiver, the plaintiff or his/her counsel shall show cause why

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Case 2:15-md-02641-DGC Document 1662 Filed 05/05/16 Page 3 of 7

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a Lexecon Waiver is not being made. If Defendants do not provide a Lexecon Waiver for

2

any case selected for inclusion in PFS/DFS Group 1 by Plaintiffs, Defendants’ counsel

3

shall show cause why a Lexecon waiver is not being made in that particular case. Any

4

party required to show cause must appear in person or by telephone before the Court to

5

explain why a Lexecon Waiver may not be made in the particular case.

6

For any case removed from PFS/DFS Group 1 because the Court determines that

7

a Lexecon Waiver is not possible, the side that selected the case shall have the right to

8

select a replacement case within five (5) business days following the Court’s

9

determination. Thereafter, the parties shall proceed with the Lexecon Waiver process

10

under this Section for that particular case.

11

III.

Plaintiff Fact Sheets (“PFS”) and Defendants Fact Sheets (“DFS”).

12

A PFS and a DFS will be completed for each case in PFS/DFS Group 1.

13

A.

14

Plaintiffs shall serve on counsel for Defendants all PFS for the PFS/DFS Group 1

15

Timing of services of Fact Sheets.

by no later than July 29, 2016.

16

Defendants shall serve on Plaintiffs’ Co-Lead/Liaison Counsel the DFS for a

17

particular matter no later than thirty (30) days after service of the PFS and all DFS shall

18

be served by no later than August 29, 2016.

19
20

The parties shall provide completed PFS/DFS on a rolling basis as they are
completed.

21

B.

22

A completed PFS and DFS shall be considered interrogatory answers under Fed.

23

R. Civ. P. 33, responses to requests for production under Fed. R. Civ. P. 34, and will be

24

governed by the standards applicable to written discovery under Fed. R. Civ. P. 26 and

25

Fed. R. Civ. P. 37. The PFS and DFS questions and document requests shall be answered

26

without objection. This section does not prohibit a party from withholding or redacting

27

information based on a recognized privilege; however, if information is withheld or

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redacted, the party so withholding or redacting information shall provide opposing party

Completion of Fact Sheets.

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with a privilege log.
The parties will provide a PFS or DFS that is substantially complete in all
respects. “Substantially complete in all respects” requires that:

4
5

(a)

only answer the question in good faith by indicating “not applicable” or “I don’t know”;

6
7

(b)

Plaintiffs shall provide the requested records authorizations

accompanying the PFS;

8
9

Every question in the PFS or DFS be answered, even if a party can

(c)

The parties will produce the documents requested in the PFS and

DFS, or provide a statement certifying that there are no responsive documents; and

10

(d)

Plaintiffs shall sign the PFS and provide verification that the

11

information contained therein is true and correct to the best of Plaintiff’s knowledge,

12

information, and belief, formed after due diligence and reasonable inquiry. If a plaintiff

13

is suing in a representative or derivative capacity, the PFS shall be completed by the

14

person with the legal authority to represent the estate or the person under legal disability.

15

Plaintiff spouses with a claim for loss of consortium shall also sign the PFS, attesting that

16

the responses made to the loss of consortium questions in the PFS are true and correct to

17

the best of his or her knowledge, information, and belief, formed after due diligence and

18

reasonable inquiry.

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C.

20

If a plaintiff fails to timely submit a PFS, or submits a PFS within the allotted time

21

which Defendants deem not to be substantially complete, Defendants shall mail an

22

overdue/deficiency letter by e-mail and U.S. mail to Plaintiffs’ Co-Lead Counsel and the

23

plaintiff’s individual representative counsel, stating whether the PFS is overdue or

24

deemed deficient, in which case the letter shall identify the purported deficiencies. The

25

letter shall include sufficient detail for the parties to meet and confer regarding the

26

alleged deficiencies. The plaintiff receiving such deficiency letter shall have fifteen (15)

27

days from receipt of that letter to meet and confer in an effort to resolve the dispute.

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Should the meet-and-confer process not resolve the dispute, the parties shall arrange a

Fact Sheet Deficiencies.

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1

call with the Court to resolve it.

2

Similarly, if Defendants do not submit a DFS within the time specified in this

3

Order, or submit a DFS within the allotted time which Plaintiffs deem not to be

4

substantially complete, Plaintiffs shall mail an overdue/deficiency letter by e-mail and

5

U.S. mail to Defendants’ Lead Counsel, stating whether the DFS is overdue or deemed

6

deficient, in which case the letter shall identify the purported deficiencies. The letter

7

shall include sufficient detail for the parties to meet and confer regarding the alleged

8

deficiencies. Defendants shall have fifteen (15) days from receipt of such a letter to meet

9

and confer in an effort to resolve the dispute. Should the meet-and-confer process not

10

resolve the dispute, the parties shall arrange a call with the Court to resolve it.

11

D.

12

Records discovery for PFS/DFS Group 1 will proceed in accordance with the

13

separate Case Management Order relating to Joint Records Collection to be entered by

14

the Court.

15

Records Discovery in PFS/DFS Group 1.

Upon receipt of a plaintiff’s PFS, Defendants may commence immediately to

16

obtain records for that plaintiff pursuant to the provisions for the records vendor process.

17

IV.

18
19

Discovery Group 1.
A.

Selection Process.
1.

By December 9, 2016, the parties shall exchange lists of ten (10)

20

cases selected from PFS/DFS Group 1, selected in a manner consistent with the goal of

21

identifying representative cases. The parties can each designate four (4) cases on those

22

lists for automatic inclusion in Discovery Group 1. After exchange of lists, the parties

23

will meet and confer in an effort to identify from the exchanged lists the remaining four

24

(4) additional cases that will be included in Discovery Group 1. By December 16, 2016,

25

the parties will complete their meet and confer process and submit to the Court a list of

26

twelve (12) cases they jointly recommend as Discovery Group 1.

27
28

2.

On December 16, 2016, the parties shall file a joint submission

identifying each of Plaintiffs’ and Defendants’ selections of cases as well as all additional

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1

cases on which the parties have agreed for inclusion in Discovery Group 1. If the parties

2

are unable to agree upon all four (4) additional cases for Discovery Group 1, they shall

3

on December 16, 2016 each submit to the Court, outside of the ECF system, their

4

proposed list of additional cases to include in Discovery Group 1 with a memorandum in

5

support of their selections. Within seven (7) business days of such submission, the

6

parties may submit a response to the opposing party’s memorandum regarding selection

7

of cases. The Court will then select the remaining cases to be included in the twelve (12)

8

cases to constitute Discovery Group 1.

9

3.

Discovery Group 1 will be governed by a scheduling order and case

10

management order that will be determined at the time the group is selected. The parties

11

will meet and confer in an effort to agree upon such scheduling order.

12

V.

13

Bellwether Group 1.
A.

14
15
16

Selection Process.
1.

The initial bellwether cases for trial will be selected from Discovery

2.

After having met and conferred, and by March 1, 2017, the parties

Group 1.

17

shall exchange lists of six (6) proposed selections from Discovery Group 1 for

18

bellwether plaintiffs, and order of trials. The parties will meet and confer in an effort to

19

agree upon a group of six (6) cases to constitute Bellwether Group 1, which shall be

20

done in a manner consistent with achieving the goal of proportionate identification of

21

representative cases. If the parties are unable to agree on six (6) cases, the parties shall

22

submit to the Court, outside of the ECF system, by March 5, 2017, their proposed lists

23

and a memorandum in support of their selections and in opposition, if applicable, to the

24

opposing party’s selections. Within seven (7) business days of such submission, the

25

parties may submit a response to the opposing party’s memorandum regarding selection

26

of cases. The parties propose that the Court then select the final group of six (6) cases to

27

form Bellwether Group 1.

28

3.

Bellwether Group 1 will be governed by a scheduling order and

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1

case management order that will be determined at the time the group is selected. The

2

parties will meet and confer in an effort to agree upon such scheduling order with the

3

goal of completing remaining case-specific discovery as close as possible to the

4

completion of common-issue discovery.

5

B.

6
7

Remedies for Diminishment of Discovery Group and/or Bellwether
Group 1.
1.

Should Plaintiffs withdraw, settle, or dismiss without prejudice a

8

case from Discovery Group 1, such case will be replaced. The party that originally

9

designated the eliminated case shall select the replacement. However, if the eliminated

10

case was one of the cases chosen by the Court, the Court will select the substitute cases

11

from a list of four (4) cases nominated by the parties (two from Plaintiffs and two from

12

Defendants).

13

2.

Should Plaintiffs withdraw, settle, or dismiss without prejudice a

14

case from Bellwether Group 1, such case will be replaced by a case from Discovery

15

Group 1 selected by the Court from a list of four (4) cases nominated by the parties (two

16

from each side).

17

VI.

18
19
20

Future Discovery and Bellwether Groups.
The selection, discovery, and trial of future bellwether cases will be the subject of

a future case management order or orders.
Dated this 5th day of May, 2016.

21
22
23
24
25
26
27
28

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1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 12
(Joint Record Collection)

10
11
12
13

Based upon the stipulation and agreement of the parties (Doc. 1470),

14

IT IS ORDERED as follows:

15

1.

The parties to this litigation have jointly agreed to use The Marker Group,

16

Inc. (“Marker”) to collect medical, insurance, Medicare, Medicaid, prescription, Social

17

Security, workers’ compensation, and employment records for individual plaintiffs from

18

third-parties designated as custodians for such records by Plaintiffs or Defendants C.R.

19

Bard, Inc. and Bard Peripheral Vascular (“Bard”).

20

2.

All plaintiffs who are included in the PFS/DFS Group 1 of the Bellwether

21

process (as set forth in Case Management Order No. 11, Doc. 1662) must complete, date,

22

and execute the agreed upon forms of party authorizations attached to this Order as

23

Exhibit A (the “Authorizations”). Those plaintiffs may not object to the form, execution,

24

or issuance of the Authorizations.

25

plaintiff shall authorize production of records from the date five years prior to implant for

26

all records described in the Authorizations.

27
28

3.

In completing the authorizations, the individual

Each Plaintiff required to execute Authorizations under this Order must

provide the original completed and executed Authorizations to Marker on the date that

Case 2:15-md-02641-DGC Document 1663 Filed 05/05/16 Page 2 of 19

1

his or her Plaintiff Fact Sheet (“PFS”) is due to be served on Bard. Each Plaintiff must

2

also serve copies of the same to Defendants with his or her PFS.

3

4.

If a custodian to whom an Authorization is presented refuses to provide

4

records in response to the Authorization, Marker will notify the parties (in accordance

5

with its vendor agreement with the parties). The individual plaintiff’s attorney shall

6

attempt to resolve the issue with the custodian, such that the necessary records are

7

promptly provided.

8

Authorizations, the individual plaintiff whose records are sought must complete the

9

custodian-specific authorization form within ten (10) days after it has been provided by

10

Marker or Bard unless he or she objects to the form. If the individual plaintiff objects to

11

the custodian-specific form, the parties shall meet and confer in an effort to resolve the

12

objection.

13

5.

To the extent any custodian requires a release other than the

Marker will send all custodians from whom records are sought the form of

14

certificate of acknowledgment attached as Exhibit B (the “Acknowledgement”). The

15

Acknowledgement will serve as evidence of authenticity and satisfy the requirements of

16

authentication under Federal Rule of Evidence 901(a). All other evidentiary objections

17

are preserved, and any party retains the right to offer proof that the certified documents

18

are not complete or are otherwise inaccurate.

19

6.

Marker will obtain records and host them in a secure database, accessible to

20

Plaintiffs and Bard, according to the parties’ vendor agreement with Marker. Any party

21

may request any ancillary services from Marker at its own expense.

22

7.

Upon receipt of records and placement into the secure database, Marker

23

will notify designated individuals for Plaintiffs and Bard (via email) that documents have

24

been posted for Plaintiffs’ review on Marker’s website. Plaintiffs shall have ten (10)

25

calendar days after such notice from Marker (the “Review Grace Period”) to review

26

records for privilege and compliance with the applicable date range for the records.

27

During the Review Grace Period, Plaintiffs will identify any documents for which they

28

claim a privilege exists or that fall outside of the applicable date range for the records. In

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1

the event that Plaintiffs’ counsel in good faith finds that the volume or content of the

2

documents posted cannot be sufficiently reviewed within the Review Grace Period,

3

Plaintiffs will notify Bard and Marker, within the applicable Review Grace Period, of a

4

request for extension of time to review the documents. Thereafter, the parties will meet

5

and confer regarding Plaintiffs’ request for an extension. If the parties are unable to

6

agree, Plaintiffs will apply to the Court for relief during the Review Grace Period. Such

7

application shall extend the Review Grace Period until resolution by the Court.

8
9
10
11

8.

Prior to the end of the Review Grace Period, Plaintiffs will notify Bard and

Marker if they contend that there are privileged documents within the group or that there
are documents that fall outside of the applicable date range for the records.
9.

Absent notification by Plaintiffs to Marker of a claimed privilege,

12

agreement to extend the Review Grace Period, or a request for relief made to the Court

13

within the Review Grace Period, Marker will automatically make the documents

14

accessible to Bard on the day after the Review Grace Period ends.

15

10.

If Plaintiffs notify Bard of a privilege claim, Plaintiffs’ counsel will

16

produce to Bard, via email, a privilege log identifying the documents as to which

17

privilege is asserted, the bases for the claimed privilege, and whether Plaintiffs will be

18

producing redacted versions of any of the documents within five (5) business days of the

19

notice. Plaintiffs will contemporaneously produce to Marker any redacted documents

20

and instruct Marker in writing to either make the redacted documents available to both

21

parties on Marker’s website or to withhold from Bard the entire set or portion of records

22

based upon Plaintiffs’ claim of privilege until further notice.

23

11.

In the event that Plaintiffs inadvertently fail to claim a legal privilege they

24

contend attaches to any record, Plaintiffs shall request a clawback of those documents by

25

Bard, meet and confer with Bard counsel regarding those documents, and, if the parties

26

agree, direct Marker to destroy the designated records.

27
28

12.

If Plaintiffs notify Bard of a claim that certain documents fall outside of the

applicable date range for the records, Plaintiffs’ counsel will produce to Bard, via email,

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Case 2:15-md-02641-DGC Document 1663 Filed 05/05/16 Page 4 of 19

1

a log identifying all such documents (including their dates).

2

contemporaneously instruct Marker in writing to withhold those documents from Bard

3

until further notice based upon Plaintiffs’ claim that they fall outside of the applicable

4

date range for such records.

5

13.

Plaintiffs will

The parties will meet and confer on any claims that documents are

6

privileged or fall outside of the applicable date range for the records, and if not resolved,

7

and if not resolved, place a joint call to the Court to seek resolution of the issue.

8

14.

Bard will pay the total costs associated with records collection from each

9

custodian, including the records-copying and provision charges from the custodians and

10

Marker’s collection service fees. Plaintiffs may download collected records from the

11

repository by paying Marker’s fees for a copy of those records without contributing to the

12

costs incurred by Bard to obtain the records from custodians. In the event that Bard

13

believes that Plaintiffs’ downloading of records exceeds that which the parties

14

contemplated in agreeing to this Order, Bard may meet and confer with Plaintiffs’ Co-

15

Lead Counsel. If the parties cannot resolve the dispute, they shall contact the Court on

16

how to resolve the issue.

17

15.

Any party may choose to discontinue the use of the joint vendor, Marker, at

18

any time upon thirty (30) days’ notice to the other parties. The withdrawing party will

19

remain responsible for the costs of any records ordered prior to the withdrawal to the

20

extent otherwise required by this Order.

21
22
23

16.

Each party retains the right to issue subpoenas and to employ other means

for discovery if required by any custodian to obtain records.
Dated this 5th day of May, 2016.

24
25
26
27
28

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Case 2:15-md-02641-DGC Document 2238 Filed 06/21/16 Page 1 of 4

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 13

10
11
12

The Court held a fourth Case Management Conference with the parties on

13

June 21, 2016. The conference was scheduled to address ongoing matters and a number

14

of issues identified in Case Management Order No. 10 (Doc. 1319).

15

A.

ESI Discovery.

16

The Court addressed the discovery dispute identified in the parties’ matrix

17

regarding ESI discovery and custodians. Doc. 1756. The parties have made considerable

18

progress in agreeing on custodians to be searched or revisited, and the development of

19

search terms. After considering arguments from the parties about the matrix dispute, the

20

Court concluded that Defendants’ ESI searches should include the regional sales

21

managers identified in the matrix. See Doc. 1756 at 5. The Court is persuaded that these

22

regional sales managers had direct responsibility for Defendants’ sales force throughout

23

the nation and likely will possess relevant information.

24

B.

FDA Warning Letter.

25

The Court addressed issues raised by the parties in a matrix of disputes related to

26

the FDA warning letter. Doc. 1471. The first, second, and fourth issues raised in the

27

matrix (Plaintiffs’ deposition request no. 7, Plaintiffs’ deposition request no. 8, and

28

Plaintiffs’ request for production no. 35) concern discovery of internal communications

Case 2:15-md-02641-DGC Document 2238 Filed 06/21/16 Page 2 of 4

1

related to the FDA warning letter and related actions. Counsel advised the Court that

2

Defendants have agreed to include in the ESI discovery search 11 of the 17 individuals

3

identified by Plaintiffs, and that the parties will continue discussing the remaining six

4

individuals Plaintiffs have identified. As a result, the parties agreed that the Court need

5

not rule on this issue.

6

The Court addressed the fourth dispute (Plaintiffs’ request for production no. 26)

7

regarding Plaintiffs’ request for the complete employment files of Messrs. Modra,

8

Uebelocker, Wheeler, and Ludwig. After listening to the parties’ arguments, the Court

9

concluded that Defendants need not produce the entire employment files for these

10

individuals. But Defendants shall produce, under the protective order, documents from

11

the files relating to any internal discipline, reprimands, adverse consequences, negative

12

employment reviews, or comparable information, taken against any of these four

13

individuals on the basis of under-reporting or non-reporting addressed in the FDA

14

warning letter.

15

The final issue raised in the matrix concerned Plaintiffs’ request for the “files” of

16

Messrs. Ring, Williamson, and Gaede related to the FDA investigation and warning

17

letter. Defense counsel have agreed to produce ESI from Messrs. Williamson and Gaede,

18

and the parties are discussing the production of ESI from Mr. Ring. The Court concluded

19

that Plaintiffs’ request for the “files” of these individuals is vague and imprecise.

20

Plaintiffs should craft more specific requests for production. The Court agreed that ESI

21

to or from these individuals related to the FDA warning letter is relevant and should be

22

produced, but further production will depend on Plaintiffs’ issuance of more precise

23

document requests.

24

C.

25

Deposition Protocol.
The Court reviewed the deposition protocol submitted by the parties. Doc. 1472.

26

The Court will make some minor modifications and issue the protocol shortly.

27

D.

28

Confidentiality Designations.
The parties’ joint report for the status conference (Doc. 1756) noted that Plaintiffs

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Case 2:15-md-02641-DGC Document 2238 Filed 06/21/16 Page 3 of 4

1

disagree with confidentiality designations Defendants have applied to some documents

2

under the Court’s protective order. Plaintiffs have been identifying the designations with

3

which they disagree, pursuant to paragraph 22 of the protective order, and asked whether

4

the Court wishes to rule on these disagreements now or later in the litigation. The Court

5

directed the parties to raise these issues later in the litigation, when documents are to be

6

used in connection with dispositive motions. At that point in the case, a different

7

standard for protection of information will apply and the Court’s decision will be

8

informed by the nature of the dispositive motions being filed by each side. In the

9

meantime, if a confidentiality designation creates problems in discovery, the parties

10

should call the Court immediately for a resolution.

11

E.

Discovery Schedule.

12

The Court discussed the existing October 28, 2016 fact discovery deadline with

13

the parties. See CMO 8, Doc. 519. Both sides stated that discovery was proceeding well

14

and that the deadline does not present concerns.

15

F.

Mature Cases.

16

The Court requested an update on the 10 mature cases that are likely to be

17

remanded before other cases in this MDL. See Doc. 1485 at 2. In the joint report to be

18

filed before the next Case Management Conference, the parties should address these

19

cases and identify projected dates by which they will be returned to their original

20

districts.

21

G.

Recently Filed Class Action.

22

The parties advised the Court that Plaintiffs’ counsel recently have filed a medical

23

monitoring class action, which was assigned to this Court. See Barraza, et al. v. CR

24

Bard, Inc., et al., Case No. CV-16-1374-PHX-DGC (D. Ariz. May 5, 2016). The parties

25

stipulated on the record that the class action may be consolidated with this MDL. The

26

Court will enter a separate order consolidating the cases. The parties also agreed that the

27

fact discovery deadline of October 28, 2016, will apply to the class action. In the joint

28

report to be filed before the next Case Management Conference, the parties shall provide

-3-

Case 2:15-md-02641-DGC Document 2238 Filed 06/21/16 Page 4 of 4

1

the Court with a proposal regarding the remaining litigation schedule for the class action.

2

Specifically, the parties should address when a motion for class certification will be filed,

3

what expert discovery is needed before that motion is filed, and whether other deadlines

4

in the MDL, such as the deadlines for disclosure of merits-related expert reports, will

5

apply in the class action.

6

H.

Next Case Management Conference.

7

The Court will hold the next Case Management Conference on August 23, 2016

8

at 10:00 a.m. The parties shall provide the Court with a joint status report on issues

9

mentioned in this Order and any issues they wish to address at the conference on or

10
11

before August 17, 2016.
Dated this 21st day of June, 2016.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Case 2:15-md-02641-DGC Document 2239 Filed 06/21/16 Page 1 of 5

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

IN RE: Bard IVC Filters Products Liability
Litigation,
THIS DOCUMENT RELATES TO:
ALL CASES

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 14
(Deposition Protocols)

12
13
14

Pursuant to the parties' stipulation (Doc. 1472),

15

IT IS ORDERED that the following deposition protocols shall be followed in

16

depositions conducted in the above-referenced MDL.

17

A.

18
19

Deposition Notices
1.

This Order applies to all depositions in MDL-2641, which will be noticed

and conducted pursuant to Fed. R. Civ. P. ("FRCP") 30 and this Order.

20

2.

This Order, in its entirety, shall be attached to any non-party subpoena or

21

deposition notice.

22

B.

23

Cross-Notices Between State Court Cases and These Proceedings
Any depositions originally noticed in this MDL may be cross-noticed in any state

24

court cases pending at the time of the deposition.

25

C.

Number of Depositions Allowed

26

Any Federal Rule of Civil Procedure and/or Local Rule purporting to limit the

27

number of depositions shall not apply in this MDL proceeding. If either side believes

28

that the other is taking unnecessary or irrelevant depositions they may bring the issue to

Case 2:15-md-02641-DGC Document 2239 Filed 06/21/16 Page 2 of 5

1

the Court for appropriate resolution, after first making a good faith effort to resolve the

2

issue without the Court’s involvement.

3

D.

4

Scheduling of Depositions
1.

Absent extraordinary circumstances, counsel shall cooperate with opposing

5

counsel and counsel for proposed deponents in an effort to schedule depositions at

6

mutually convenient times and locations in accordance with the schedule established in

7

this case.

8
9
10

2. Lead and Liaison Counsel shall be responsible for providing posted notice of
any deposition in this MDL to counsel.
E.

Location of Depositions

11

The parties shall endeavor to schedule all depositions at locations within a

12

reasonable distance from the place of residence of the deponent, or at such other location

13

as is agreed to by all counsel involved and the deponent.

14

F.

15

Attendance at Deposition
1.

In order to arrange for adequate deposition space, counsel wishing to attend

16

in person a deposition noticed in MDL-2641 shall provide notice to Plaintiffs' Co-Lead

17

Counsel or Defendants' Lead Counsel of their intention to attend in person three days in

18

advance of the deposition. Plaintiffs’ Co-Lead Counsel and Defendants’ Lead Counsel

19

shall consult two days prior to the deposition to ensure that there is adequate space for the

20

deposition.

21

2.

In the event that a party wishes to participate in a deposition remotely, that

22

is, either by telephone or internet, that party shall notify the party noticing the deposition

23

(either Plaintiff’ Co-Lead Counsel or Defendants’ Lead Counsel) two days in advance of

24

the start of the deposition and make the arrangements necessary to participate in the

25

deposition. Any party seeking to participate remotely must agree to be bound by

26

applicable Protective Order in this case and agree not to re-record the deposition, by

27

video or audio means.

28

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Case 2:15-md-02641-DGC Document 2239 Filed 06/21/16 Page 3 of 5

1

3.

While a deponent is being examined about any information subject to the

2

Protective Order entered in this litigation, persons to whom disclosure is not authorized

3

shall be excluded whether in person or telephonically.

4

G.

5

Conduct of Depositions
1.

There should ordinarily be no more than two examining attorneys per side,

6

who shall confer prior to the deposition regarding the allocation of time to question.

7

Counsel for Plaintiffs shall cooperate so that examinations by multiple attorneys for the

8

MDL do not exceed the allotted time. Under no circumstances will Plaintiffs’ failure to

9

allocate time among themselves (or to enforce such an allocation during the deposition)

10

result in the extension of a deposition.

11

2.

All deposition objections are reserved, except as to the form of the question

12

and the answer. Counsel shall otherwise comply with Fed. R. Civ. P. 30(c)(2) concerning

13

objections at depositions. An objection by one party reserves the objection for all parties.

14

H.

15

Duration and Time Allocation of Deposition
1.

The time limitations on depositions imposed by Fed. R. Civ. P. 30(d)(1)

16

shall apply in the MDL unless the parties agree to a different time limitation in the MDL

17

or the Court establishes a different time limitation in this Order or for a particular

18

deposition or depositions. The Parties shall negotiate in good faith regarding any request

19

by any Party for an extended length of time for a particular deposition. If the Parties

20

cannot agree on the length of a deposition, a Party may move for an extension of the

21

seven hour limit; provided that in no event may a deposition last more than seven hours

22

in a given day absent agreement of counsel or order of this Court.

23

2.

The party noticing the deposition of an opposing party, its officers, present

24

employees, present agents, and present consultants shall be entitled to the full time

25

allowed under Fed. R. Civ. P 30(d)(1). The deposed party (or party whose officers,

26

employees, or agents are deposed) may extend the deposition beyond the time allowed

27

under Fed. R. Civ. P 30(d)(1) in order to examine the witness; however, the noticing

28

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Case 2:15-md-02641-DGC Document 2239 Filed 06/21/16 Page 4 of 5

1

party shall presumptively be entitled to an additional amount of deposition time equal to

2

half the time used by the extending party.

3

3.

For the depositions of former employees, agents, or consultants of Bard

4

both sides shall have the opportunity to examine the witnesses on common issues for up

5

to a total of eight (8) hours. The deposition time shall be allocated as follows: six (6)

6

hours to Plaintiffs, and two (2) hours to Bard. If Bard believes unusual circumstances

7

exist to alter the allocation of time, it shall notify Plaintiffs’ Co-Lead Counsel not later

8

than ten (10) days prior to the deposition date and the parties shall meet and confer as to

9

whether to reallocate time and, if so, on the reallocation.

10
11

4.

For all other fact witnesses, both sides shall have equal time to examine the

witnesses.

12

5.

Depositions should normally be completed by no later than 7:30 p.m. on the

13

date noticed. If for some reason the deposition cannot be completed by 7:30 p.m., the

14

parties and the witness may agree to extend the deposition beyond 7:30 p.m. However, if

15

both parties and the witness are not in agreement to extend the deposition beyond

16

7:30 p.m., the parties and witness shall meet and confer regarding the date and time for

17

completion of the deposition.

18

I.

Supplemental Depositions

19

Parties added to this MDL after a deposition has been taken may, within sixty (60)

20

days after becoming a party in this Court, request permission to conduct a supplemental

21

deposition of the deponent. If permitted, the deposition shall be treated as the resumption

22

of the deposition originally noticed. Supplemental depositions may not be taken without

23

leave of court or agreement of the parties.

24

J.

Deposition Disputes

25

Disputes arising during depositions that cannot be resolved by agreement and that,

26

if not immediately resolved, will significantly disrupt the discovery schedule, require

27

rescheduling of the deposition, or possibly result in the need to conduct a supplemental

28

deposition, shall be presented to the Court by telephone. In the event the Court is not

-4-

Case 2:15-md-02641-DGC Document 2239 Filed 06/21/16 Page 5 of 5

1

available, the parties will continue with the deposition making a full reservation of rights

2

on the record concerning the dispute at issue to preserve it for a ruling by the Court at the

3

earliest possible time.

4

Dated this 21st day of June, 2016.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 3214 Filed 08/25/16 Page 1 of 5

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 15

10
11
12

The Court held a fifth case management conference with the parties on August 23,

13
14

2016.

The conference addressed ongoing matters and issues identified in Case

15

Management Order No. 13 (Doc. 2238).

16

A.

Bellwether Selection.

17

The parties have made good progress in selecting bellwether cases for PFS/DFS

18

Group 1. See Doc. 1662. Two Plaintiffs among the cases selected by Defendants have

19

declined to provide Lexecon waivers. At the case management conference, counsel for

20

these Plaintiffs explained the Plaintiffs’ reasons for not providing waivers. After hearing

21

the reasons, and comments by defense counsel, the Court concluded that Plaintiffs are not

22

attempting to manipulate the bellwether selection process by strategically withholding of

23

waivers, and that counsel for the two Plaintiffs provided colorable reasons for declining

24

waivers. Based on these findings, the Court could identify no basis upon which to order

25

these Plaintiffs to waive their rights under Lexecon. As a result, Defendants should

26

identify two more cases and the parties should continue to follow the procedures in Case

27

Management Order No. 11 (Doc. 1662).

28

Case 2:15-md-02641-DGC Document 3214 Filed 08/25/16 Page 2 of 5

1

B.

ESI Discovery.

2

The parties have encountered some difficulties with respect to the discovery of

3

ESI from “shared” space on Defendants’ servers and computers. The Court expressed

4

concern that this issue remains unresolved so late in the litigation. To ensure that the

5

issue is resolved promptly, the Court entered the following order. The parties will meet

6

(as they had already planned to do) today to address this issue. Defense experts will be

7

present to propose a method for locating relevant ESI on shared space. If the parties have

8

not reached agreement on this issue by August 30, 2016, the Court will hold a conference

9

call on August 31, 2016, at 10:00 a.m. The Court intends to appoint a Special Master if

10

a dispute remains, and to require the Special Master to render a decision on this issue no

11

later than September 16, 2016, so production can occur by the end of September. If the

12

parties reach agreement, they can simply notify the Court that a conference call is not

13

necessary on August 31, 2016. In all events, the Court expects Defendants to complete

14

production of ESI from the shared space by the end of September.

15

The parties addressed Plaintiffs’ request to obtain ESI discovery from Defendants’

16

overseas operations.

17

regulatory communications, from entities operating in foreign countries, that differ from

18

marketing and regulatory statements Defendants have made in the United States.

19

Plaintiffs have not identified any reason to believe that such different communications

20

have occurred, and Mr. Carr apparently testified that Defendants’ marketing and

21

regulatory communications all originate in Defendants’ United States operations. The

22

Court is inclined to conclude that the chances of finding relevant and helpful information

23

through such discovery are simply too remote to justify the effort required to search

24

electronic communications in 15 to 20 overseas companies in order to find statements

25

that might be inconsistent with the myriad marketing and regulatory communications

26

Defendants have issued in the United States. To ensure that the Court makes a fully-

27

informed decision on this issue, however, Plaintiffs may file a short memorandum by the

28

close of business on August 25, 2016, stating their reasons for believing either that Mr.

Specifically, Plaintiffs want to obtain marketing materials or

-2-

Case 2:15-md-02641-DGC Document 3214 Filed 08/25/16 Page 3 of 5

1

Carr’s description is incorrect or that there is good reason to suspect that relevant

2

information can be obtained from foreign sources without undue burden. If the Court

3

concludes that a response is required by Defendants, the Court will order Defendants to

4

provide that response promptly. Otherwise, Defendants need not respond, and the Court

5

will issue a ruling on this matter.

6

C.

Mature Cases.

7

The parties have indicated that remand of the mature cases identified in previous

8

Case Management Orders should await completion of expert discovery in this case

9

because such discovery may be relevant in the trials of the mature cases. The parties

10

asked whether any case-specific discovery should occur in this MDL with respect to

11

mature cases, and the Court concluded that it should not. Case-specific discovery should

12

occur after remand.

13

D.

Class Action Schedule.

14

The Court and the parties discussed a schedule for class certification discovery and

15

briefing in the Barraza case, No. CV16-1374. The Court established a schedule that will

16

be contained in a separately issued Case Management Order.

17

E.

Beasley Deposition.

18

The Court concludes that Mr. Beasley, who is a Group President at C.R. Bard,

19

qualifies for consideration under the apex deposition doctrine. The relevant inquiry,

20

therefore, is (1) whether he has unique, first-hand, non-repetitive knowledge of the facts

21

at issue in this case, and (2) whether Plaintiffs have exhausted other less-intrusive

22

discovery methods. See Klungvedt v. UNUM Grp., 2013 WL 551473, at *2 (D. Ariz.

23

Feb. 13, 2013). The parties shall file three page memoranda by the close of business on

24

August 26, 2016, addressing these issues.

25

F.

Multi-Plaintiff Cases.

26

The Court discussed with the parties a multi-plaintiff case recently transferred to

27

this MDL (CV16-2442), and a second multi-plaintiff case that may be transferred in the

28

future. Defendants have filed a motion to dismiss in the recently transferred case. See

-3-

Case 2:15-md-02641-DGC Document 3214 Filed 08/25/16 Page 4 of 5

1

No. CV16-2442, Docs. 9, 10. Plaintiffs shall file a response to this motion no later than

2

September 2, 2016, and Defendants shall file a reply on or before September 13, 2016.

3

The Court will deal with the coming multi-plaintiff case when it arrives.

4

G.

Privilege Issues.

5

The parties shall resolve remaining privilege issues by September 28, 2016. If

6

the issues are not resolved by that date, the parties promptly shall place a conference call

7

to the Court.

8

H.

9

Duplicative Filings.
The parties stated that three Plaintiffs have appeared in at least two cases,

10

represented by different attorneys, in this MDL.

11

Steering Committee to confer with the attorneys representing these Plaintiffs in an effort

12

to obtain agreement regarding dismissal of one of the duplicative cases. Plaintiffs shall

13

report on this effort in the joint report to be filed before the next Case Management

14

Conference. If duplicative filings remain, the parties should propose a motion method

15

and schedule under which the Court can resolve this issue.

16

I.

The Court directed the Plaintiffs’

Plaintiffs’ Objections.

17

Plaintiffs have objected to discovery of communications between Plaintiffs and the

18

FDA related to the FDA warning letter, communications between Plaintiffs and NBC

19

related to NBC news stories about the products at issue in this case, and third-party

20

financing that may be in place with respect to Plaintiffs in this MDL.

21

discussed these issues with the parties, and decided that focused briefing is needed. By

22

the close of business on September 2, 2016, the parties shall file nine-page memoranda

23

addressing these three issues.

24

J.

The Court

Deceased Plaintiffs.

25

The Court has, unfortunately, received notices of the deaths of three Plaintiffs:

26

John L. Kuhn, Jr. (Doc. 2332), Olan Jones (Doc. 2850), and Anthony C. Docimo

27

(Doc. 3101). The Plaintiffs’ Steering Committee shall contact Plaintiffs’ counsel in these

28

cases. Before the next status conference, Plaintiffs’ counsel shall decide whether the

-4-

Case 2:15-md-02641-DGC Document 3214 Filed 08/25/16 Page 5 of 5

1

cases survive the death of the Plaintiff in each case, and shall file documents with respect

2

to their position on the survival of claims. Plaintiffs’ counsel shall report on the status of

3

these cases and any additional cases that may arise at the next Case Management

4

Conference.

5

K.

PSC Report.

6

Plaintiffs’ counsel stated that a report from the Plaintiffs’ Steering Committee is

7

due at the end of September 2016, and requested an extension to October 31, 2016 for the

8

filing of the report. The Court agreed. After the hearing, the Court reviewed Case

9

Management Order No. 6 (Doc. 372) and noted that the most recent quarterly report was

10

due at the end of the second week of August (Doc. 372 at 13). The Court is not certain

11

what report Plaintiffs’ counsel were referring to at the conference, or whether the report

12

required in Case Management Order No. 6 has been provided. Plaintiffs’ counsel shall,

13

within the next week, communicate with the Court regarding this issue.

14

L.

Next Case Management Conference.

15

The Court will hold the next Case Management Conference on October 14, 2016

16

at 10:00 a.m. The parties shall provide the Court with a joint status report on issues

17

mentioned in this Order and any issues they wish to address at the conference on or

18

before October 10, 2016.

19

Dated this 24th day of August, 2016.

20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 3215 Filed 08/25/16 Page 1 of 2

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

IN RE: Bard IVC Filters Products Liability
Litigation,
THIS DOCUMENT RELATES TO
Barraza, et al. v. C. R. Bard, Inc., et al.,
Case No. CV-16-1374-PHX-DGC.

12

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER NO. 16
___
(Deadlines Related to Barraza, et al. v.
C. R. Bard, Inc., et al.)

13
14

The Court enters the following Case Management Order regarding certain

15

deadlines in the case Barraza, et al. v. C. R. Bard, Inc., et al., Case No. CV-16-1374-

16

PHX-DGC:

17

A.

Class Certification Fact Discovery
1.

18

Fact discovery related to class certification shall be completed no later than

19

January 9, 2017.

20

B.

21

Class Certification Expert Disclosures and Discovery
1.

With respect to experts relied upon to support class certification, Plaintiffs

22

shall provide full and complete expert disclosures and reports as required by Rule

23

26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than January 13, 2017.

24

2.

With respect to experts relied upon to oppose class certification, Defendants

25

shall provide full and complete expert disclosures and reports as required by Rule

26

26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than February 24, 2017.

27
28

3.

With respect to rebuttal experts relied upon to support or oppose class

certification, if any, the party so relying shall submit full and complete expert disclosures

Case 2:15-md-02641-DGC Document 3215 Filed 08/25/16 Page 2 of 2

1

and reports as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure

2

no later than March 24, 2017.

3

4.

Depositions of class certification-related experts shall be completed no later

4

than April 28, 2017.

5

C.

6

Motion for Class Certification
1.

A motion for class certification shall be filed no later than May 12, 2017. A

7

response shall be filed no later than June 9, 2017.

8

June 30, 2017. Such motion must comply in all respects with the Federal Rules of Civil

9

Procedure and the Local Rules.

A reply shall be filed on

10

A hearing on the motion for class certification shall be held on July 14, 2017

11

at 2:30 p.m. before the Honorable David G. Campbell, 401 West Washington Street,

12

Courtroom 603, Phoenix, Arizona 85003.

13

Dated this 24th day of August, 2016.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 1 of 6

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MD 15-02641
CASE MANAGEMENT ORDER
NO. 17
(Stipulation and Order Concerning
Protective Order and Redactions of
Material from Defendants’ Expedited
ESI Production)

13
14

To expedite document production of ESI from Defendants, the parties, through

15

their respective counsel, have agreed to a primarily “no-eyes-on” document production as

16

to relevancy while still performing a privilege review for ESI Defendants will be

17

producing subsequent to this Order. That procedure requires certain changes to protection

18

and requirements in the protective order (Doc. 269) and Case Management Order No. 7

19

and corresponding Exhibit A (Doc. 401) for ESI produced pursuant to this process. To the

20

extent that any of the below provisions are inconsistent with either the protective order

21

(Doc. 269) or Case Management Order No. 7 and corresponding Exhibit A (Doc. 401), the

22

below provisions shall control all documents produced pursuant to this Order.

23

THEREFORE, IT ORDERED as follows:

24

The parties have agreed on an ESI production process (the “Process”). All ESI

25
26
27
28

produced by Bard pursuant to the Process will be subject to the following terms:

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 2 of 6

1

1.

At the time of production, Bard will identify the documents or ESI as being

2

produced pursuant to the Process and subject to the restrictions of this Case Management

3

Order (“CMO”).

4

2.

Plaintiffs will maintain all documents and ESI produced pursuant to the

5

Process as confidential and not use the documents or ESI for any purpose outside of their

6

own review and analysis until they have complied with this CMO.

7

3.

Until Plaintiffs identify the documents or ESI for use, access to the

8

documents and ESI is limited to attorneys and staff at PLC firms and their consultants

9

who execute the attached addendum and agree to be subject to the restrictions of this

10
11

CMO.
4.

If Plaintiffs intend to use a document or ESI identified by Defendants as

12

produced pursuant to the Process for any purpose other than as set forth in paragraph 2

13

above, they shall notify Defendants in writing (or by email) of their intent to use the

14

document or ESI, identifying the document or ESI by production Bates number(s). Once

15

Plaintiffs have done so, the document or ESI shall be deemed conditionally designated as

16

“Confidential” under the protective order (Doc. 269) and subject to the restrictions of that

17

Order (including filing under seal). Such designation shall not negate the additional

18

protections and procedures afforded by Paragraphs 6, 7, 9, and 10 of this CMO.

19

5.

Defendants shall thereafter have 30 days to affirmatively designate the

20

document or ESI as Confidential pursuant to the Protective Order (doc. 269) in which case

21

it will be treated as Confidential under that Order as of the date of initial production. Such

22

designation may be made by separate writing that identifies the document or ESI by

23

production Bates number(s). Plaintiffs may challenge such confidentiality designations in

24

accordance with the terms of the Protective Order (doc. 269).

25

6.

Defendants shall have the right to identify any document, file, or other form

26

of ESI produced pursuant to the Process as both being irrelevant to the matters in dispute

27

in this MDL and containing trade secret or other confidential information and to “claw

28

back” such ESI or documents from the production. After Plaintiffs identify a particular
2

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 3 of 6

1

document, file, or other ESI for intended use pursuant to Paragraph 4, Defendants shall

2

have 30 days to seek claw back of the particular document pursuant to this paragraph; this

3

latter requirement does not apply to documents, files, and other ESI produced pursuant to

4

the Process that have not been identified for use by Plaintiffs pursuant to Paragraph 4,

5

which may be clawed back at any time.

6

7.

Defendants shall have the right to identify any such documents or ESI as

7

subject to the requirements of CMO No. 7 (Doc. 401) and to require the redaction of the

8

information set forth in that Order; in that event, Defendants shall provide Plaintiffs with a

9

redacted version of the subject documents or ESI with the same production Bates

10

number(s) and Plaintiffs shall destroy any unredacted copies or versions of the document

11

that they possess.

12

8.

Plaintiffs shall have the right to challenge any designation by Defendants

13

under paragraphs 6 or 7 by submission of the ESI or document to the Court under seal and

14

any filings that refer to the protected substance of the ESI or document must, likewise, be

15

made under seal.

16

9.

17

Federal Rule of Evidence 502(d) protection for privileged information

produced pursuant to the Process:

18

a. Pursuant to Federal Rule of Evidence 502(d), production or disclosure

19

pursuant to the Process of the substance or content of documents, materials,

20

or other information that is protected by the attorney-client privilege, work-

21

product protection, or any other privilege or protection shall not amount to

22

waiver of the privilege and/or protection in this MDL, or in any other

23

federal or state proceeding.

24

b. If Plaintiffs identify a document, material, or other information in the

25

documents and ESI produced pursuant to the Process that reasonably

26

appears to be protected by any privilege or other protection, they shall

27

promptly notify Defendants in writing or email.

28

determine that the document, material, or other information is privileged or
3

If the Defendants

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 4 of 6

1

otherwise protected, it shall make such an assertion in writing within 30

2

days of receipt of notification. Once the privilege or protection is asserted,

3

the parties shall follow the process discussed in Federal Rule of Civil

4

Procedure 26(b)(5)(B). Failure to assert the privilege or protection within

5

30 days of receipt of notification shall amount to waiver of any privilege or

6

protection only of the document, material, or other information identified in

7

the notification, subject to Federal Rule of Evidence 502(a).

8

c. For any document, material, or other information produced or disclosed

9

during discovery, and not identified pursuant to section (b) of this

10

Paragraph, Defendants shall assert any claim of privilege or protection in

11

writing (including by email) within 30 days after Plaintiffs identify the

12

material for use pursuant to Paragraph 4 of this CMO. Once the privilege or

13

protection is asserted, the parties shall follow the process discussed in

14

Federal Rule of Civil Procedure 26(b)(5)(B). Failure to assert the privilege

15

or protection shall amount to waiver of the privilege or protection only of

16

the document, material, or other information used, subject to Federal Rule of

17

Evidence 502(a).

18

d. Unless waived under sections (b) or (c), at any time, a party that produces

19

any document, material, or other information that it believes to be protected

20

by the attorney-client privilege, work-product protection, or any other

21

privilege or protection may assert the privilege or protection in writing.

22

Once the privilege or protection is asserted in writing, the parties shall

23

follow the process discussed in Federal Rule of Civil Procedure

24

26(b)(5)(B).

25

10.

To the extent that the documents or ESI produced pursuant to the Process

26

contain any adverse event reporter names or information of a patient who is not a party to

27

this litigation and which would otherwise be redacted in accordance with CMO No. 7,

28

Plaintiffs and their counsel and agents shall not contact the patient or reporter of an
4

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 5 of 6

1

adverse event unless and until the parties go through the processes outlined in Paragraphs

2

6 and 8 of this CMO with respect to the redaction of information and this Court

3

determines the information is not subject to redaction.

4

Dated this 13th day of September, 2016.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

Case 2:15-md-02641-DGC Document 3372 Filed 09/14/16 Page 6 of 6

1

EXHIBIT A

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE DISTRICT OF ARIZONA

4
5

No. MD-15-02641-PHX-DGC

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

AGREEMENT TO MAINTAIN
CONFIDENTIALITY

6
7
8
9

I, ______________________ (Name), have been given and have read a copy of the

10

Case Management Order No. __, dated _______________, 2016 in the case of MDL No.

11

2641, pending in the United States District Court District of Arizona. I understand and

12

will strictly adhere to the contents of said Order. I understand that produced material

13

disclosed to me is subject to the Order of this Court and that I am prohibited from

14

copying, disclosing, or otherwise using such material except as provided by said court

15

Order. I understand that my unauthorized disclosure of any information protected by the

16

Order or contact of a patient or reporter of an adverse event in violation of the Order may

17

constitute contempt of court and I agree to be personally subject to the jurisdiction of this

18

Court for the purpose of enforcing my obligations under this Agreement, the Order, and

19

any contempt proceeding that may be instituted for my violation of the terms of this

20

Acknowledgment and the Order. I also understand that my signature on this “Agreement

21

to Maintain Confidentiality”, indicating my agreement to be bound by the terms of the

22

Case Management Order, is required before I may be allowed to receive and review any

23

produced document and materials that are produced pursuant to the Process as set forth in

24

the Case Management Order.

25
26
27

Date: _______________

Print Signature:_________________________
Signature:_____________________________

28
6

Case 2:15-md-02641-DGC Document 3685 Filed 10/17/16 Page 1 of 5

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 18

10
11
12
13

The Court held a sixth case management conference with the parties on

14

October 14, 2016. The conference addressed ongoing matters and issues identified in

15

Case Management Order No. 15 (Doc. 3214) and the parties’ joint report (Doc. 3636).

16

A.

Adjustment of Discovery Schedule.

17

Plaintiffs ask that the discovery schedule be extended by approximately four

18

months in light of substantial document production that has occurred in the last few

19

weeks, the need to review the documents, and the likely need for additional depositions in

20

light of the new documents. Defendants oppose the request.

21

A case management schedule entered under Rule 16 of the Federal Rules of Civil

22

Procedure “may be modified only for good cause.” Fed. R. Civ. P. 16(b)(4); see Johnson

23

v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Good cause exists

24

when a deadline “cannot reasonably be met despite the diligence of the party seeking the

25

extension.” Fed. R. Civ. P. 16 Advisory Comm. Notes (1983 Am.). Thus, “Rule 16(b)’s

26

‘good cause’ standard primarily considers the diligence of the party seeking the

27

amendment.” Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d

28

1271, 1294 (9th Cir. 2000). Where that party has not been diligent, the inquiry ends and

Case 2:15-md-02641-DGC Document 3685 Filed 10/17/16 Page 2 of 5

1

the motion is denied. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002);

2

Johnson, 975 F.2d at 609.

3

On the basis of the discussion at the case management conference and previous

4

conferences, the Court concludes that Plaintiffs have been reasonably diligent in seeking

5

the production of ESI in this litigation. ESI discovery has been monitored by the Court

6

from the start of this litigation. See Docs. 249 at 2; 519 at 4-5; 1259; 1319 at 3; 2238 at

7

1; 3214 at 2. Throughout this process, it has appeared that Plaintiffs and Defendants have

8

worked with reasonable diligence to understand the location and nature of ESI and agree

9

upon search methods. Some of the parties’ progress was slowed when Defendants

10

concluded that they must change ESI vendors in August 2016. Although it is true that

11

final search terms were not arrived at until September 14, 2016, the parties had agreed

12

upon and produced much ESI before that date and worked with reasonable diligence up

13

to that date.

14

Plaintiffs report that they have received production of more than 800,000

15

documents in the last few weeks. Clearly, Plaintiffs are unable to complete their review

16

of these documents (totaling more than 3 million pages) by the close of discovery on

17

October 28, 2016. Plaintiffs say they need about six weeks to review the documents, and

18

then 10 to 12 weeks for depositions. The Court does not agree that this much time is

19

needed for depositions. The Court will extend the discovery schedule as follows.1 The

20

parties are advised that the Court does not intend to grant additional extensions.

21

Deadline for completing fact discovery:

February 3, 2017

22

Deadline for Plaintiffs’ expert disclosures:

March 3, 2017

23
24
25
26
27
28

1

Following the case management conference, the Court concluded that review of
the documents and additional depositions could be completed in less time, and drafted
this order accordingly. The Court then received a conference call from the parties stating
that Defendants plan to produce an additional one million pages of documents tomorrow.
Plaintiffs’ counsel stated that this would delay their predictive-coding search of the
documents by one week. It also will result in additional documents to review, although,
as Defendants have noted, the production has been made without eyes-on review by
Defendants (to expedite the production, and with Plaintiffs’ consent) and therefore
includes a potentially large amount of irrelevant material. Following the conference call,
the Court decided to grant a longer extension to account for this additional production.
-2-

Case 2:15-md-02641-DGC Document 3685 Filed 10/17/16 Page 3 of 5

1

Deadline for Defendants’ expert disclosures:

April 14, 2017

2

Deadline for rebuttal expert disclosures:

May 12, 2017

3

Deadline for expert depositions:

July 14, 2017

4

The Court notes that expert disclosures on these dates must be full and complete as

5

required by Rule 26(a)(2)(A)-(C), and rebuttal expert disclosures shall be limited to

6

responding to opinions of initial experts.

7

B.

Adjustment of Bellwether Schedule.

8

Because the parties likely will be busy completing fact discovery in January, the

9

Court concludes that the bellwether schedule in CMO 11 (Doc. 1662) should be adjusted

10

slightly. The deadlines for forming Discovery Group 1 will remain as set forth in

11

CMO 11, § IV. Section V.A.2 of CMO 11 is amended as follows:

12
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14
15
16
17
18
19
20
21

After having met and conferred, and by April 21, 2017, the parties
shall exchange lists of six (6) proposed selections from Discovery Group 1
for bellwether plaintiffs, and order of trials. The parties will meet and
confer in an effort to agree upon a group of six (6) cases to constitute
Bellwether Group 1, which shall be done in a manner consistent with
achieving the goal of proportionate identification of representative cases. If
the parties are unable to agree on six (6) cases, the parties shall submit to
the Court, outside of the ECF system, by April 28, 2017, their proposed
lists and a memorandum in support of their selections and in opposition, if
applicable, to the opposing party’s selections. Within seven (7) business
days of such submission, the parties may submit a response to the opposing
party’s memorandum regarding selection of cases. The parties propose that
the Court then select the final group of six (6) cases to form Bellwether
Group 1.2

22

The parties should confer on the discovery to be completed between the December

23

2016 selection of Discovery Group 1 and the bellwether selection process set forth above.

24

In the Court’s view, all discovery need not be completed in every case in Discovery

25

Group 1 before the bellwether cases are selected, but enough discovery will be needed to

26
27
2

28

The Court set these new dates to fall after each side has made their initial expert
disclosures, thus ensuring that the parties can consider the other side’s major expert
opinions in making their bellwether selections.
-3-

Case 2:15-md-02641-DGC Document 3685 Filed 10/17/16 Page 4 of 5

1

ensure that the parties have a reasonably informed basis for making selections. The

2

parties should be prepared at the next case management conference to propose the nature

3

and timing of discovery to occur during this period.

4

The Court’s intention will be complete bellwether selection in early May, and set a

5

schedule that will permit all discovery, and appropriate motion practice, to be completed

6

in time to hold the first bellwether trial in the Fall of 2017. Other bellwether trials may

7

also be possible before the end of 2017.

8

C.

Depositions.

9

The Court will permit the additional depositions of Drs. Kaufman (4 hours),

10

Venbrux (3 hours), Trerotola (4 hours), and Stavropolous (4 hours). The Court concludes

11

that these doctors have information relevant to the thousand-plus cases that are now part

12

of this MDL and that could not reasonably have been inquired into during their previous,

13

shorter depositions. In scheduling these depositions, the parties should be considerate of

14

the doctors’ busy schedules. These depositions may be scheduled any time between now

15

and the new fact discovery deadline of February 3, 2017. If these doctors have filed

16

motions to quash in other districts, the parties should consider the applicability of

17

Rule 45(f). The 2013 Advisory Committee note to Rule 45(f) states that exceptional

18

circumstances – as required in one application of the provision – may exist “in order to

19

avoid disrupting the issuing court’s management of the underlying litigation, as when that

20

court has already ruled on issues presented by the motion[.]”

21

The Court concludes that Plaintiffs have had ample opportunity to question

22

Dr. Lehmann in the 11 hours of deposition already completed and the Texas hearing at

23

which he testified, and will not permit his further deposition. The re-deposition of John

24

McDermott will not occur for reasons agreed upon during the case management

25

conference.

26

The Court will permit the following depositions: Kevin Boyle, Scott Randall,

27

Mike Randall, Mark Wilson, Kim Romney, Dr. Lynch, and Dr. Cohen.

28

depositions may occur between now and the February 3, 2017 deadline. The Court

-4-

These

Case 2:15-md-02641-DGC Document 3685 Filed 10/17/16 Page 5 of 5

1

concludes that each of these witnesses has relevant information, and that their depositions

2

are proportional to the needs of this MDL.

3

D.

Special Master.

4

The Court will not appoint a special master to oversee depositions. The Court

5

does not believe that the experienced and professional counsel in this case are incapable

6

of conducting a proper deposition without supervision.

7

deposition, however, the parties should call the Court during the deposition. The Court

8

has instructed staff that the call is to be taken if at all possible. If the undersigned judge

9

is out of town in rules committee or other meetings, staff will be instructed to transfer the

10

call to the judge or arrange a time later that day for a conference call. Such out-of-town

11

calls may not be on the record. The Court will endeavor to make itself available to

12

resolve any issues that arise during depositions.

13

E.

If problems arise in any

Next Case Management Conference.

14

The Court will hold the next Case Management Conference on December 9, 2016

15

at 3:00 p.m. The parties shall provide the Court with a joint status report on or before

16

December 5, 2016.

17

Dated this 14th day of October, 2016.

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-5-

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 1 of 6

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
AMENDED CASE MANAGEMENT
ORDER NO. 17

10
11

(Stipulation and Order Concerning
Protective Order and Redactions of
Material from Defendants’ Expedited
ESI Production)

12
13
14
15

To expedite document production of ESI from Defendants, the parties, through

16

their respective counsel, have agreed to a primarily “no-eyes-on” document production as

17

to relevancy while still performing a privilege review for ESI Defendants will be

18

producing subsequent to this Order. That procedure requires certain changes to protection

19

and requirements in the Stipulated Protective Order (Doc. 268) and Case Management

20

Order No. 7 and corresponding Exhibit A (Doc. 401) for ESI produced pursuant to this

21

process. To the extent that any of the below provisions are inconsistent with either the

22

protective order (Doc. 268) or Case Management Order No. 7 and corresponding Exhibit

23

A (Doc. 401), the below provisions shall control all documents produced pursuant to this

24

Order.

25

This Amended Case Management Order replaces in its entirety the original Case

26

Management Order No. 17 and any inconsistent provisions in the Stipulated Protective

27

Order (Doc. 268), including the attached revised Exhibit A.THEREFORE, IT ORDERED

28

as follows:

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 2 of 6

1
2
3

The parties have agreed on an ESI production process (the “Process”). All ESI
produced by Defendants pursuant to the Process will be subject to the following terms:
1.

At the time of production, Defendants will identify the documents or ESI as

4

being produced pursuant to the Process and subject to the restrictions of this Case

5

Management Order (the “Process ESI”).

6

2.

The Process ESI shall be subject to the Stipulated Protective Order (Doc.

7

268) entered in this case and the terms of this CMO. Nothing in this CMO shall prevent

8

the use of any Process ESI in other actions brought by the plaintiff’s counsel, so long as a

9

substantially comparable protective order, including both the terms of the Stipulated

10

Protective Order (Doc. 268) and this CMO, is entered in those other actions. Paragraph 12

11

of the Stipulated Protective Order (Doc. 268) is hereby amended consistent with this

12

Paragraph.

13

3.

Prior to using any document or ESI from the Process ESI as part of a filing,

14

at a deposition, or at a trial or hearing in this matter, Plaintiffs shall make a good faith

15

effort to identify whether the document or ESI contains any information that is subject to

16

redaction under Case Management Order No 7 and corresponding Exhibit A (Doc. 401)

17

and to redact any such information in accordance with that Order and redaction protocol.

18

4.

Defendants shall independently have the right to identify any documents or

19

ESI from the Process ESI, including documents identified by Plaintiffs pursuant to

20

Paragraph 3, as subject to the requirements of Case Management Order No. 7 (Doc. 401)

21

and to require the redaction of the information set forth in that Order; in that event,

22

Defendants shall provide Plaintiffs with a redacted version of the subject documents or

23

ESI with the same production Bates number(s) and Plaintiffs shall destroy any unredacted

24

copies or versions of the document that they possess.

25

5.

Defendants shall have the right to identify any document, file, or other form

26

of ESI produced pursuant to the Process as both being irrelevant to the matters in dispute

27

in this MDL and containing trade secret or other confidential information and to “claw

28

back” such ESI or documents from the production. After Plaintiffs use a document or ESI
2

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 3 of 6

1

from the Process ESI as part of a filing, at a deposition, or at a trial or hearing in this

2

matter, Defendants shall have 30 days to seek claw back of the particular document

3

pursuant to this Paragraph; this latter requirement does not apply to Process ESI that has

4

not been used by Plaintiffs as part of a filing, at a deposition, or at a trial or hearing in this

5

matter, which may be clawed back at any time.

6

6.

Plaintiffs shall have the right to challenge any designation or claw back by

7

Defendants under Paragraphs 4 or 5 by submission of the ESI or document to the Court

8

under seal, and any filings that refer to the protected substance of the ESI or document

9

must, likewise, be made under seal.

10
11

7.

Federal Rule of Evidence 502(d) protection for privileged information

produced pursuant to the Process:

12

a. Pursuant to Federal Rule of Evidence 502(d), production or disclosure

13

pursuant to the Process of the substance or content of documents, materials,

14

or other information that is protected by the attorney-client privilege, work-

15

product protection, or any other privilege or protection shall not amount to

16

waiver of the privilege and/or protection in this MDL, or in any other

17

federal or state proceeding.

18

b. If Plaintiffs identify a document, material, or other information in the

19

documents and ESI produced pursuant to the Process that reasonably

20

appears to be protected by any privilege or other protection, they shall

21

promptly notify Defendants in writing or email.

22

determine that the document, material, or other information is privileged or

23

otherwise protected, it shall make such an assertion in writing within 30

24

days of receipt of notification. Once the privilege or protection is asserted,

25

the parties shall follow the process discussed in Federal Rule of Civil

26

Procedure 26(b)(5)(B). Failure to assert the privilege or protection within

27

30 days of receipt of notification shall amount to waiver of any privilege or

28
3

If the Defendants

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 4 of 6

1

protection only of the document, material, or other information identified in

2

the notification, subject to Federal Rule of Evidence 502(a).

3

c. For any document, material, or other information produced or disclosed

4

during discovery, and not identified pursuant to section (b) of this

5

Paragraph, Defendants shall assert any claim of privilege or protection in

6

writing (including by email) within 30 days after Plaintiffs use the document

7

or ESI as part of a filing, at a deposition, or at a trial or hearing in this

8

matter. Once the privilege or protection is asserted, the parties shall follow

9

the process discussed in Federal Rule of Civil Procedure 26(b)(5)(B).

10

Failure to assert the privilege or protection shall amount to waiver of the

11

privilege or protection only of the document, material, or other information

12

used, subject to Federal Rule of Evidence 502(a).

13

d. Unless waived under sections (b) or (c), at any time, a party that produces

14

any document, material, or other information that it believes to be protected

15

by the attorney-client privilege, work-product protection, or any other

16

privilege or protection may assert the privilege or protection in writing.

17

Once the privilege or protection is asserted in writing, the parties shall

18

follow the process discussed in Federal Rule of Civil Procedure

19

26(b)(5)(B).

20

8.

To the extent that the documents or ESI produced pursuant to the Process

21

contain any adverse event reporter names or information of a patient who is not a party to

22

this litigation and which would otherwise be redacted in accordance with Case

23

Management Order No. 7, Plaintiffs and their counsel and agents shall not contact the

24

patient or reporter of an adverse event unless and until the parties go through the

25

processes outlined in Paragraphs 5 and 7 of this Case Management Order with respect to

26
27
28
4

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 5 of 6

1

redaction of information and this Court determines the information is not subject to

2

redaction.

3

Dated this 15th day of November, 2016.

4
5
6
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8
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12
13
14
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22
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25
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27
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5

Case 2:15-md-02641-DGC Document 4015 Filed 11/16/16 Page 6 of 6

1

EXHIBIT A

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE DISTRICT OF ARIZONA

4
5

No. MD-15-02641-PHX-DGC

IN RE: BARD IVC FILTERS
PRODUCTS LIABILITY LITIGATION

AGREEMENT TO MAINTAIN
CONFIDENTIALITY

6
7
8

I, ______________________ (Name), as a principal in __________________

9

(“Law Firm”), have been given and have read a copy of the Amended Case Management

10

Order No. 17 and the Stipulated Protective Order (Doc 268) (the “Orders”) in the case of

11

MDL No. 2641, pending in the United States District Court District of Arizona, as have

12

all members of the Law Firm working on this litigation. We understand and will strictly

13

adhere to the contents of said Orders. We understand that produced material disclosed to

14

us is subject to the Orders of this Court and that we are prohibited from copying,

15

disclosing, or otherwise using such material except as provided by said court Orders. We

16

understand that any member of the Law Firm’s unauthorized disclosure of any

17

information protected by the Orders or contact of a patient or reporter of an adverse event

18

in violation of the Orders may constitute contempt of court, and we agree to be personally

19

subject to the jurisdiction of this Court for the purpose of enforcing our obligations under

20

this Agreement, the Orders, and any contempt proceeding that may be instituted for the

21

Law Firm’s violation of the terms of this Acknowledgment and the Orders. I also

22

understand that my signature on this “Agreement to Maintain Confidentiality,” indicating

23

my agreement, the agreement of the members of the Law Firm working on this litigation

24

and the Law Firm’s agreement to be bound by the terms of the Orders, is required before

25

me and the members of the Law Firm may be allowed to receive and review any produced

26

document and materials that are protected under the Orders.

27

Date: _______________

28

Print Signature:_________________________
Signature:_____________________________
6

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 1 of 9

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

IN RE: BARD IVC FILTERS

MDL 15-21641 PHX DGC

PRODUCTS LIABILITY LITIGATION

AMENDED CASE MANAGEMENT
ORDER NO. 1

This Order Relates to: All Actions

12
13

This Court set appointments of Plaintiffs’ leadership in the original Case

14

Management Order No. 1 (Doc. 248) on October 30, 2015 for a term of one year. The

15

Court has reviewed Plaintiffs’ Co-Lead/Liaison Counsel’s Memorandum Re Leadership

16

Appointments (Doc. 3847) and issues this Amended Case Management Order No. 1 for

17

the appointment of individuals to Plaintiffs’ leadership in this MDL for the term of this

18

Order.

19

I.

20

Plaintiffs’ Leadership Counsel Appointments
The Court having considered all of the applications submitted and other relevant

21

information, appoints the following plaintiffs’ counsel to leadership positions, as indicated

22

and to be known as “Plaintiffs Leadership Counsel” (PLC):

23
24
25

Plaintiffs’ Co-Lead/Liaison Counsel and State/Federal Liaison Counsel
Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Robert W. Boatman
Phoenix, AZ 85016

26
27
28

Ramon R. Lopez

Lopez McHugh, LLP
100 Bayview Cir., Ste. 5600
Newport Beach, CA 92660

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 2 of 9

1

Plaintiffs’ Executive Committee (PEC)

2
3

Julia Reed Zaic

Heaviside Reed Zaic
312 Broadway St., Ste. 203
Laguna Beach, CA 92651

Howard L. Nations

The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042

Russell W. Budd

Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219

Wendy R. Fleishman

Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

4
5
6
7
8
9
10
11
12

Plaintiffs’ Steering Committee (PSC)

13
14

Shannon Clark

15
16

John A. Dalimonte

17
18

Ben C. Martin

19
20

Joseph R. Johnson

Julia Reed Zaic

Heaviside Reed Zaic
312 Broadway St., Ste. 203
Laguna Beach, CA 92651

Howard L. Nations

The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042

Russell W. Budd

Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219

23
24
25
26
27

Karon & Dalimonte, LLP
85 Devonshire St., Ste. 1000
Boston MA, 02109
Law Offices of Ben C. Martin
3219 McKinney Ave., Ste. 100
Dallas, TX 75204
Babbitt & Johnson, PA
1641 Worthington Rd., #100
West Palm Beach, FL 33409

21
22

Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Phoenix, AZ 85016

28
-2-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 3 of 9

1

Thomas P. Cartmell

Wagstaff & Cartmell, LLP
4740 Grand Ave., #300
Kansas City, MO 64112

Margaret Branch

Branch Law Firm
2025 Rio Grande Blvd, NW
Albuquerque, NM 87104

Wendy R. Fleishman

Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

Donald A. Migliori

Motley Rice, LLC
321 South Main St., 2nd Floor
Providence, RI 02903

Sheila M. Bossier

Freese & Goss, PLLC
1520 North State St.
Jackson, MS 39202

Stuart L. Goldenberg

Goldenberg Law, PLLC
800 Lasalle Ave., #2150
Minneapolis, MN 55402

Christopher T. Kirchmer

Provost Umphrey Law Firm, LLP
490 Park St., P.O. Box 4905
Beaumont, TX 77704

Michael A. Kelly

Walkup, Melodia, Kelly & Schoenberger
650 California St.
San Francisco, CA 94108

Matthew McCarley

Fears Nachawati Law Firm
4925 Greenville Ave., Ste. 715
Dallas, TX 75206

Hadley L. Matarazzo

Faraci Lange, LLP
First Federal Plaza
28 East Main St., Ste. 1100
Rochester, NY 14614

Eric M. Terry

TorHoerman Law, LLC
101 W. Vandalia
Edwardsville, IL 62025

Joseph A. Osborne

Osborne & Associates Law Firm, PA
433 Plaza Real, Ste. 271
Boca Raton, FL 33432

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 4 of 9

1

Michael T. Gallagher

The Gallagher Law Firm, LLP
2905 Sackett Street
Houston, TX 77098

Nate Van Der Veer

Farris, Riley & Pitt LLP
The Financial Center
505 20th Street North
Birmingham, AL 35203

Matthew Schultz

Levin Papantonio Thomas Mitchell
Rafferty Proctor, PA
316 S. Baylen St.
Suite 600
Pensacola FL 32502

Steven Rotman

Hausfeld, LLP
1700 K Street NW
Suite 650
Washington DC 20006

2
3
4
5
6
7
8
9
10
11
12

II.

13

Responsibilities
A.

14

Procedural Matters
1.

As noted in this Court’s previous Order Setting Initial Case

15

Management Conference dated September 15, 2015, the Clerk of this Court will maintain

16

a master docket case file under the style “In Re: Bard IVC Filters Products Liability

17

Litigation” and the identification “MDL No. 2641.” Lead/Liaison will be (a) the only

18

attorneys permitted to file in the Master Docket as to all actions, and (b) the only attorneys

19

receiving Notices of Electronic Filing for pleadings and orders filed in the Master Docket

20

for all actions.

21
22

2.

With regard to the Master Docket, Plaintiffs’ Lead/Liaison Counsel

shall:

23

a.

Serve as the recipient for all Court orders.

24

b.

Coordinate service and filings for all plaintiffs whether

25
26

presently included or subsequently added.
c.

27
28

Maintain and distribute to co-counsel and to Defendants’
Counsel an up-to-date service list.

d.

Maintain responsibility for service upon all other attorneys
-4-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 5 of 9

1

and parties as to filings made in the master docket.

2

Specifically,

3

distribute, to all other Plaintiffs’ counsel, pleadings orders, and

4

motions by email, overnight courier service, or telecopier,

5

within two days after receipt, unless such service has been

6

waived, in writing, by a receiving counsel.
e.

7

Lead/Liaison

Counsel

shall

receive

and

Coordinate discovery and litigation with similar cases outside
of this Court's jurisdiction.

8
3.

9

Lead/Liaison Counsel is only responsible for service with regard to

10

filings in the Master Docket. With regard to case-specific filings, all attorneys of record in

11

the relevant member action will receive a Notice of Electronic Filing from the Court.
4.

12

New counsel for later-filed or later-transferred cases that become part

13

of this MDL shall be responsible for checking the Master Docket for all orders previously

14

entered that may have relevance to such new cases.
B.

15

In addition to the responsibilities identified above, Plaintiffs’ Lead/Liaison Counsel

16
17

shall:
1.

18
19

Responsibilities Specific to Lead/Liaison Counsel

Coordinate the establishment of a document depository, real or

virtual, to be available to all participating plaintiffs’ counsel;
2.

20

Maintain and make available to all participating plaintiffs’ counsel of

21

record, at reasonable hours, a complete file of all documents served by or upon each party

22

(except documents as may be available at a document depository);
3.

23
24

Prepare agendas for court conferences and periodically report

regarding the status of the case; and
4.

25

Carry out such other duties as the Court may order.

26

C.

Responsibilities of Plaintiffs’ Executive Committee

27

The PEC shall assist, advise, and collaborate with Co-Lead Counsel in the

28

discharge of duties of liaison and Co-Lead Counsel outlined in Sections II. A and B
-5-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 6 of 9

1

above. The PEC, with the authority of Co-Lead counsel, and in coordination with their

2

efforts and responsibilities, shall assist and collaborate with Co-Lead Counsel in the

3

administration, organization, and strategic decisions of the PLC. At the direction of Co-

4

Lead Counsel PEC members shall have the authority to make, supervise and oversee

5

assignments to other PSC members.

6
7
8

D.

Responsibilities Applicable to all Plaintiffs’ Leadership Counsel

Plaintiffs’ Leadership Counsel shall have the following responsibilities:
5.

Discovery
a.

9

Initiate, coordinate, and conduct all pretrial discovery on

10

behalf of plaintiffs in all actions which are consolidated with

11

this MDL.
b.

12

Develop and propose schedules for the commencement,

13

execution, and completion of all discovery on behalf of all

14

plaintiffs.
c.

15

Cause to be issued in the name of all plaintiffs the necessary

16

discovery requests, motions and subpoenas pertaining to any

17

witnesses and documents needed to properly prepare for the

18

pretrial of relevant issues found in the pleadings of this

19

litigation.
d.

20

manner on behalf and for the benefit of all plaintiffs.

21
22
23

Conduct all discovery in a coordinated and consolidated

6.

Hearings and Meetings
a.

Call meetings of counsel for plaintiffs for any appropriate

24

purpose, including coordinating responses to questions of

25

other parties or of the Court. Initiate proposals, suggestions,

26

schedules or joint briefs, and any other appropriate matters

27

pertaining to pretrial proceedings.

28
-6-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 7 of 9

b.

1

Examine witnesses and introduce evidence on behalf of
plaintiffs at hearings.

2
c.

3

Act as spokespersons for all plaintiffs at pretrial proceedings

4

and in response to any inquiries by the Court, subject to the

5

right of any plaintiff’s counsel to present non-repetitive

6

individual or different positions.

7
8

7.

Miscellaneous
a.

Submit and argue all verbal and written motions presented to

9

the Court on behalf of Plaintiff’s Leadership Counsel as well

10

as oppose when necessary any motion submitted by

11

defendants or other parties which involve matters within the

12

sphere of the responsibilities of Plaintiffs’ Leadership

13

Counsel.

14

b.

Negotiate and enter into stipulations with defendants regarding

15

this litigation. All stipulations entered into by Plaintiffs’

16

Leadership Counsel, except for strictly administrative details

17

such as scheduling, must be submitted for Court approval and

18

will not be binding until ratified by the Court. Any attorney

19

not in agreement with a non-administrative stipulation shall

20

file with the Court a written objection within five (5) days

21

after he/she knows or should have reasonably become of

22

aware of the stipulation. Failure to object within the term

23

allowed shall be deemed a waiver and the stipulation will

24

automatically be binding on that party.

25

c.

Explore, develop, and pursue all settlement options pertaining

26

to any claim or portion thereof of any case filed in this

27

litigation.

28
-7-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 8 of 9

d.

1

Maintain adequate files of all pretrial matters, including

2

establishing

3

depository, in either real or virtual format, and having those

4

documents available, under reasonable terms and conditions

5

for examinations by all MDL plaintiffs or their attorneys.
e.

6

and

maintaining

a

document

or

exhibit

Perform any task necessary and proper for Plaintiffs

7

Leadership Counsel to accomplish its responsibilities as

8

defined

9

subcommittees comprised of plaintiffs’ lawyers not on

by

the

Court’s

orders,

including

organizing

Plaintiffs’ Leadership Counsel.

10
f.

11

Work

with

Lead/Liaison

Counsel

to

coordinate

the

12

responsibilities of Plaintiffs’ Leadership Counsel meetings,

13

keep minutes or transcripts of these meetings, appear at

14

periodic Court-noticed status conferences, perform other

15

necessary administrative or logistic functions of Plaintiffs’

16

Leadership Counsel, and carry out any duty as ordered by the

17

Court.
g.

18

Perform other such functions that may be expressly authorized
by further Court Orders.

19
E.

20

Reimbursement of Costs Expended

21

Plaintiffs’ Leadership Counsel shall be entitled to seek reimbursement for costs

22

expended at the time and in a manner approved by the Court. Reimbursements will be

23

governed by a further case management order to be proposed by Plaintiffs’ Leadership

24

Counsel and entered by the Court.

25

III.

Term of Appointments.

26

Appointments to all leadership positions in this order shall last for a term of one

27

year from the date of this order unless terminated earlier by the Court. Thirty days before

28

the expiration of this one-year term, Lead/Liaison Counsel shall file a memorandum
-8-

Case 2:15-md-02641-DGC Document 4016 Filed 11/16/16 Page 9 of 9

1

notifying the Court of the need to make further appointments and making

2

recommendations regarding those appointments.

3

Dated this 15th day of November, 2016.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-

Case 2:15-md-02641-DGC Document 4141 Filed 12/02/16 Page 1 of 2

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

IN RE: Bard IVC Filters Products Liability
Litigation,
THIS DOCUMENT RELATES TO
Barraza, et al. v. C. R. Bard, Inc., et al.,
Case No. CV-16-1374-PHX-DGC.

12

No. MDL 15-02641-PHX DGC
AMENDED CASE MANAGEMENT
ORDER NO. 16
(Deadlines Related to Barraza, et al. v.
C. R. Bard, Inc., et al.)

13
14

The Court enters the following Amended Case Management Order No. 16

15

regarding certain deadlines in the case Barraza, et al. v. C. R. Bard, Inc., et al., Case No.

16

CV-16-1374-PHX-DGC:

17

A.

Class Certification Fact Discovery
1.

18

Fact discovery related to class certification shall be completed no later than

19

February 3, 2017.

20

B.

21

Class Certification Expert Disclosures and Discovery
1.

With respect to experts relied upon to support class certification, Plaintiffs

22

shall provide full and complete expert disclosures and reports as required by Rule

23

26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than February 10, 2017.

24

2.

With respect to experts relied upon to oppose class certification, Defendants

25

shall provide full and complete expert disclosures and reports as required by Rule

26

26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than March 17, 2017.

27
28

3.

With respect to rebuttal experts relied upon to support or oppose class

certification, if any, the party so relying shall submit full and complete expert disclosures

Case 2:15-md-02641-DGC Document 4141 Filed 12/02/16 Page 2 of 2

1

and reports as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure

2

no later than April 21, 2017.

3

4.

Depositions of class certification-related experts shall be completed no later

4

than May 19, 2017.

5

C.

6

Motion for Class Certification
1.

A motion for class certification shall be filed no later than June 5, 2017. A

7

response shall be filed no later than July 7, 2017. A reply shall be filed on July 28, 2017.

8

Such motion must comply in all respects with the Federal Rules of Civil Procedure and

9

the Local Rules.

10

A hearing on the motion for class certification shall be held on August 11, 2017

11

at 2:30 p.m. before the Honorable David G. Campbell, 401 West Washington Street,

12

Courtroom 603, Phoenix, Arizona 85003.

13

Dated this 1st day of December, 2016.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

Case 2:15-md-02641-DGC Document 4311 Filed 12/13/16 Page 1 of 3

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 19

10
11
12

The Court held a seventh Case Management Conference on December 9, 2016.

13

The conference addressed ongoing matters identified in the parties’ joint report

14

(Doc. 4176).

15

A.

ESI.

16

Plaintiffs have identified some Defendant custodians from whom they have not

17

received ESI. Defendants have agreed to conduct additional searches with respect to

18

some of these custodians, and are investigating the lack of responsive information from

19

others.

20

December 22, 2016.

21

issues, and the Court directed the parties to Federal Rule of Civil Procedure 37(e) as

22

providing the rules the Court will apply to any ESI-spoliation argument.

23

B.

Defendants shall produce any additional ESI from these custodians by
Plaintiffs mentioned that they may consider raising spoliation

Bellwether Selection.

24

Defendants expressed concern that two cases in PFS/DFS Group 1 (see CMO 11)

25

have recently been dismissed or shortly will be dismissed by Plaintiffs. Defendants

26

stated that these two cases were to be among the ten cases Defendants intended to

27

identify under paragraph IV.A.1 of CMO 11. After conferring with the parties, the Court

28

struck two cases from Plaintiffs’ list of ten (not including the four cases Plaintiffs

Case 2:15-md-02641-DGC Document 4311 Filed 12/13/16 Page 2 of 3

1

intended to designate for automatic inclusion in Discovery Group 1), and directed the

2

parties to exchange their lists of ten without respect to the two stricken cases and the two

3

cases to be dismissed. In effect, the Court reduced the pool from which the parties could

4

choose their ten preferred cases from 48 to 44, and did so in a way that results in each

5

side losing two possible candidates.

6

By December 16, 2016, the parties shall provide the Court with the 12 cases in

7

Discovery Group 1 if they have been able to reach agreement, and, if not, with the eight

8

cases to be included in Discovery Group 1 (or ten, if the parties have reached agreement

9

on two additional cases), along with memoranda explaining why they believe the Court

10

should pick particular cases to complete Discovery Group 1. The memoranda shall not

11

exceed three pages case. Responses shall be filed on or before December 22, 2016.

12

On or before December 16, 2016, the parties shall also provide the Court with a

13

proposed scheduling order to govern Discovery Group 1 between now and March 1,

14

2017, when Bellwether Group 1 will be selected. See CMO 11, ¶ V.A.

15

C.

Mature Cases.

16

After conferring with the parties, the Court concluded that it is premature to

17

remand mature cases to their home districts. Those cases will involve expert opinions

18

regarding the FDA warning letters and the Kay Fuller allegations, and the Court

19

concludes that disclosure of those opinions, as well as expert discovery and any Daubert

20

motions, should be handled in this MDL. This conclusion does not preclude the parties

21

from discussing specific cases which may be subject to remand before the expert work is

22

completed.

23

D.

Depositions of Plaintiffs’ Counsel.

24

Plaintiffs shall file a response to the arguments set forth by Defendants in

25

Doc. 4176 on or before December 16, 2016. Defendants shall file a reply on or before

26

December 22, 2016.

27
28

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Case 2:15-md-02641-DGC Document 4311 Filed 12/13/16 Page 3 of 3

1

E.

30(b)(6) Deposition Notice.

2

After conferring with the parties, the Court concluded that Topic 15 in the Rule

3

30(b)(6) deposition discussed in Doc. 4176 should read as follows: “Did Defendants ever

4

conduct any studies, formulate any company positions, or adopt any policies addressing

5

whether there was any correlation between indwell times and safety risks?” If the answer

6

to any portion of this question is yes, the Rule 30(b)(6) witness should be prepared to

7

testify about the studies, positions, or policies.

8

F.

Next Case Management Conference.

9

The next Case Management Conference will be held on February 17, 2017 at

10

10:00 a.m. The parties shall provide the Court with a joint status report on or before

11

February 13, 2017.

12

Dated this 13th day of December, 2016.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 4335 Filed 12/22/16 Page 1 of 2

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-2641-DGC
CASE MANAGEMENT ORDER

10

NO. 20

11

(Discovery Deadlines for Discovery
Group 1 and Bellwether Group 1)

12
13

Pursuant to Case Management Orders No. 11 (Doc. 1662), 18 (Doc. 3685), and 19

14

(Doc. 4311), the Court enters this Case Management Order No. 20 regarding scheduling

15

for Discovery Group 1 and Bellwether Group 1.

16

Action
Deadline for Plaintiffs to provide dates for
depositions of all Plaintiffs in Discovery
Group 1 and spouse or significant family
member
Case-specific fact discovery commences
in individual Discovery Group 1 cases
Deadline to complete depositions of all
Plaintiffs (including those Plaintiffs with
loss of consortium claims)
End of preliminary case-specific fact
discovery for Discovery Group 1 cases
Parties exchange lists of six (6) proposed

17
18
19
20
21
22
23
24
25
26
27
28

Date/Deadline
Dec. 30, 20161

January 5, 2017
Feb. 16, 20172

April 10, 2017
April 17, 2017

1

Plaintiffs’ counsel shall make a good faith effort to obtain and provide dates on a rolling
basis in advance of Dec. 30, 2016 for all Discovery Group 1 cases identified by the Parties
on December 16. For cases chosen by the Court after that date, Plaintiffs will use their
best efforts to obtain and provide dates within two weeks after case selection.
2

The parties may extend this deadline by up to two weeks for cases selected after
December 16, 2016.

Case 2:15-md-02641-DGC Document 4335 Filed 12/22/16 Page 2 of 2

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2
3
4
5
6
7
8
9
10
11
12

selections from Discovery Group 1 for
Bellwether Group 1, and order of trials
(per CMO 18, Sec. B).
If the parties are unable to agree on six (6)
cases to comprise Bellwether Group 1, the
parties shall submit to the Court proposed
lists and memorandum in support of their
submissions and, if applicable, in
opposition to the opposing party’s
selections (per CMO 18, Sec. B).
Responses to opposing party’s
memorandum regarding selection of cases
for inclusion in Bellwether Group 1 (per
CMO 18, Sec. B).
Commence additional case-specific fact
discovery for Bellwether Group 1
Plaintiffs’ case-specific expert disclosures
for Bellwether Group 1

13
14

Defendants’ expert disclosures for
Bellwether Group 1

15
16
17
18
19
20
21

Case-specific rebuttal expert disclosures
for Bellwether Group 1
Deadline for completion of additional
case-specific fact discovery for
Bellwether Group 1
Deadline for case-specific expert
depositions (intended to coincide with the
end of common expert discovery) for
Bellwether Group 1

April 24, 2017

April 28, 2017

Upon entry of the Court's selection of the
final group of six (6) cases to form
Bellwether Group 1.
May 15, 2017 (or two weeks after Court’s
selection of Bellwether Group 1,
whichever is later)
June 12, 2017 (or six weeks after Court’s
selection of Bellwether Group 1,
whichever is later)
June 26, 2017 (or eight weeks after
Court’s selection of Bellwether Group 1,
whichever is later)
June 30, 2017

July 14, 2017

22

The parties shall place a joint call to the Court on April 28, 2017 to remind it that

23

the selection of Bellwether Group 1 cases should occur promptly in order to keep this

24

schedule on track.

25

Dated this 22nd day of December, 2016.

26
27
28
2

Case 2:15-md-02641-DGC Document 4866 Filed 02/06/17 Page 1 of 4

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-2641-PHX DGC
CASE MANAGEMENT ORDER
NO. 21

9
10

(Discovery Protocols for Discovery
Group 1)

11
12
13

Pursuant to Case Management Order No. 11 [Doc. 1662], Case Management Order

14

No. 18 [Doc. 3685], and Case Management Order No. 19 [Doc. 4311], the Court enters

15

this Case Management Order No. 21 regarding the discovery to be conducted for cases in

16

Discovery Group 1.

17

I.

DEPOSITION PROTOCOLS GENERALLY

18

A.

Case Management Order No. 14 shall apply to Discovery Group 1.

19

B.

The additional protocols of this Case Management Order shall also apply to
Discovery Group 1.

20
C.

21

Pursuant to Case Management Order No. 11, Section V.A.3 and Case

22

Management Order No. 18, Section B, the Parties will provide discovery

23

protocols applicable to Bellwether Group 1 by no later than April 28, 2017.

24
25

II.

DEPOSITIONS PERMITTED
A.

Prior to April 10, 2017, the Parties may take the following depositions in

26

each case that is part of Discovery Group I:

27

1.

28

The principal Plaintiff and any loss-of-consortium plaintiff;

Case 2:15-md-02641-DGC Document 4866 Filed 02/06/17 Page 2 of 4

1

2.

2

The spouse or significant family member of the Plaintiff if there is no
loss-of-consortium plaintiff;

3

3.

The implanting physician;

4

4.

One additional treating physician as selected by Defendants; and

5

5.

No more than one sales representative and/or supervisor as selected

6

by Plaintiffs.

7

B.

8

Examination of treating physicians.
1.

By no later than February 15, 2017, Plaintiffs shall identify the

9

physicians whom they have a good faith belief they would call as

10

witnesses in their case in chief for each of the Discovery Group 1

11

cases. By no later than February 24, 2017, Defendants shall identify

12

any physician not identified by Plaintiffs whom they have a good

13

faith belief they would call in their case in chief for each of the

14

Discovery Group 1 cases.

15

2.

16

For any physician deposed in Discovery Group 1:
a.

Plaintiffs’ counsel shall be the first examiner for any physician

17

Plaintiffs have identified by February 15, 2017 as a witness

18

they would call in their case in chief; and

19

b.

Defendants’ counsel shall be the first examiner for any

20

physician Defendants have identified by February 24, 2017 as

21

a witness they would call in their case in chief.

22

C.

23
24
25
26
27

Nothing in this Order is intended to limit additional fact discovery in cases
selected for inclusion in Bellwether Group 1.

III.

PROTOCOLS RELATING TO TREATING PHYSICIANS
A.

Ex Parte Communications with Treating Physicians
1.

Defendants are prohibited from communicating ex parte with
Plaintiffs’ treating physicians.

28
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Case 2:15-md-02641-DGC Document 4866 Filed 02/06/17 Page 3 of 4

1

2.

2
3
4

Plaintiffs’ counsel may communicate ex parte with treating
physicians.

B.

Disclosure of Documents Prior to Depositions of Treating Physicians
1.

If Plaintiffs’ counsel has communicated ex parte with a treating

5

physician who will be deposed, Plaintiffs’ counsel shall identify by

6

production bates number (or by providing a copy if no such bates

7

numbers exist) to opposing counsel all documents provided, shown,

8

read from, or otherwise specifically described to the witness, other

9

than the physician’s records of treatment, at least five (5) days prior

10
11

to the deposition.
2.

For ex parte meetings with a physician that take place less than five

12

(5) days prior to the deposition:

13

a.

at least 24 hours prior to the meeting, Plaintiffs’ counsel shall

14

identify by production bates number (or by providing a copy if

15

no such bates numbers exist) to opposing counsel all

16

documents they intend to provide, show, read from, or

17

otherwise specifically describe to the witness, other than the

18

physician’s records of treatment;

19

b.

as soon as practicable after the meeting, Plaintiffs’ counsel

20

shall disclose to opposing counsel all documents that were

21

actually provided, shown, read from, or otherwise specifically

22

described to the witness, other than the physician’s records of

23

treatment.

24

3.

At least five (5) days prior to a physician deposition, all examining

25

counsel shall provide to opposing counsel and deponent’s counsel

26

copies of documents that may be shown to the witness during the

27

deposition or about which counsel expects to examine a deponent,

28
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Case 2:15-md-02641-DGC Document 4866 Filed 02/06/17 Page 4 of 4

1

other than the physician’s records of treatment. The obligations of

2

this section include the good faith representations of counsel to

3

identify only those documents actually intended to be utilized during

4

the deposition, not to exceed 40 in number.

5

Dated this 6th day of February, 2017.

6
7
8
9
10
11
12
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16
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24
25
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27
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-4-

Case 2:15-md-02641-DGC Document 5007 Filed 02/17/17 Page 1 of 3

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 22

10
11
12
13
14

The Court held an 8th case management conference on February 17, 2017. The

15

conference addressed ongoing matters identified in the parties’ joint report (Doc. 4948),

16

and was followed by an ex parte meeting with Plaintiffs’ counsel, on the record,

17

regarding leadership, accounting, and audit issues related to Plaintiffs’ management of

18

this MDL. The following matters were decided during the case management conference.

19

A.

20

Defense Summary Judgment Motion.
By March 17, 2017, Defendants shall file a motion for summary judgment

21

arguing that Plaintiffs’ claims are pre-empted.

The parties shall then confer about

22

whether Plaintiffs can respond immediately to the motion or whether Plaintiffs need time

23

to prepare expert responses or conduct other discovery. (The Court is not implying that

24

other discovery will be permitted.) The parties shall address their respective positions on

25

this issue in their joint report for the next status conference. If Plaintiffs believe that

26

additional factual or expert development is needed, they shall attach to the joint report an

27

affidavit or declaration that complies with Rule 56(d) of the Federal Rules of Civil

28

Procedure. At the status conference, the Court will determine whether additional factual

Case 2:15-md-02641-DGC Document 5007 Filed 02/17/17 Page 2 of 3

1

or expert development is required and will set a schedule to complete briefing.

2

B.

Plaintiffs’ Expert Reports on Meridian and Denali Filters.

3

Plaintiffs seek additional time to produce reports from their experts on Meridian

4

and Denali filters. Plaintiffs explained that the volume of discovery over the last few

5

months has made it difficult for them to complete expert reports on these filters by the

6

current deadline of March 3, 2017. To allow additional time for these reports while

7

maintaining the overall discovery schedule, the Court will permit Plaintiffs to make

8

expert disclosures on the Meridian and Denali filters by April 7, 2017.

9

responsive expert reports will be due May 12, 2017. Any rebuttal reports from Plaintiffs

10

will be due June 9, 2017. The terms of Case Management Order No. 8 (Doc. 519) apply

11

to these expert reports. The experts who produce these reports will be deposed between

12

June 9 and the expert deposition cut-off date of July 14, 2017.

13

C.

Defense

Further Deposition of Michael Randall.

14

The Court will not grant additional deposition time for Michael Randall. The

15

Court reviewed relevant portions of his previous deposition transcript and concludes that

16

he was not being evasive or answering improperly. Mr. Randall has been deposed for

17

seven hours as a fact witness and seven hours as a Rule 30(b)(6) witness, and the Court

18

views this time as sufficient.

19

D.

Production of Documents for Specific Employees.

20

With respect to the six employees listed on page 14 of the joint report (Doc. 4948),

21

Defendants need not produce entire employment files, but shall produce, under the

22

protective order if necessary, documents from the employment files relating to any

23

internal discipline, reprimands, adverse consequences, negative employment reviews, or

24

comparable information, taken against any of these employees on the basis of off-label

25

promotion of Bard IVC filters.

26

E.

Outstanding Discovery Disputes.

27

The fact discovery period for the MDL has closed. The parties shall continue to

28

confer about any remaining discovery disputes. On or before March 10, 2017, the

-2-

Case 2:15-md-02641-DGC Document 5007 Filed 02/17/17 Page 3 of 3

1

parties shall jointly submit to the Court a matrix setting forth any unresolved discovery

2

issues.

3

F.

Future Joint Submissions.

4

In the future, as the parties prepare joint reports for status conferences, the parties

5

shall exchange drafts of the joint reports at least four business days before the filing

6

deadline and responses to each side’s proposed submissions two days before the

7

deadline.

8

circumstances arise.

9

G.

10
11
12

Additional matters may be included in the joint report if exceptional

Next Status Conference.
The Court will hold the next status conference on May 3, 2017 at 3:00 p.m. The

parties shall provide a joint status report by April 28, 2017.
Dated this 17th day of February, 2017.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 1 of 9

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8
9
10

IN RE: Bard IVC Filters Products Liability
Litigation

11

MDL No. 15-2641 PHX DGC
SECOND AMENDED CASE
MANAGEMENT ORDER NO. 1

12
13

This Court set appointments of Plaintiffs’ leadership in the original Case

14

Management Order No. 1 (Doc. 248) on October 30, 2015 for a term of one year. The

15

Court entered Amended Case Management Order No. 1 [Doc. 4016] on November 16,

16

2016, re-appointing Co-Lead Counsel, appointing and re-appointing members of the

17

Plaintiffs’ Steering Committee, and appointing a Plaintiffs’ Executive Committee for

18

another one-year term. The Court has reviewed Plaintiffs’ Co-Lead/Liaison Counsel’s

19

Memorandum Requesting Substitution of Leadership Appointments [Doc. 5236] and

20

issues this Second Amended Case Management Order No. 1 for the appointment of

21

individuals to Plaintiffs’ leadership in this MDL for the term of this Order.

22

I.

23

Plaintiffs’ Leadership Counsel Appointments
The Court having considered all of the applications submitted and other relevant

24

information, appoints the following plaintiffs’ counsel to leadership positions, as indicated

25

and to be known as “Plaintiffs Leadership Counsel” (PLC):

26
27
28

Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 2 of 9

1
2
3
4

Plaintiffs’ Co-Lead/Liaison Counsel and State/Federal Liaison Counsel
Lopez McHugh, LLP
100 Bayview Cir., Ste. 5600
Ramon R. Lopez
Newport Beach, CA 92660
Mark S. O’Connor

5

Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Phoenix, AZ 85016

6
7
8
9
10

Plaintiffs’ Executive Committee (PEC)
Heaviside Reed Zaic
312 Broadway St., Ste. 203
Julia Reed Zaic
Laguna Beach, CA 92651
Howard L. Nations

The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042

Russell W. Budd

Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219

Wendy R. Fleishman

Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

11
12
13
14
15
16
17

Plaintiffs’ Steering Committee (PSC)

18
19

Shannon Clark

20
21

John A. Dalimonte

22
23

Ben C. Martin

24
25

28

Karon & Dalimonte, LLP
85 Devonshire St., Ste. 1000
Boston MA, 02109
Law Offices of Ben C. Martin
3219 McKinney Ave., Ste. 100
Dallas, TX 75204

Joseph R. Johnson

Babbitt & Johnson, PA
1641 Worthington Rd., #100
West Palm Beach, FL 33409

Julia Reed Zaic

Heaviside Reed Zaic
312 Broadway St., Ste. 203
Laguna Beach, CA 92651

26
27

Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Phoenix, AZ 85016

-2-

Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 3 of 9

1

Howard L. Nations

The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042

Russell W. Budd

Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219

Thomas P. Cartmell

Wagstaff & Cartmell, LLP
4740 Grand Ave., #300
Kansas City, MO 64112

Margaret Branch

Branch Law Firm
2025 Rio Grande Blvd, NW
Albuquerque, NM 87104

Wendy R. Fleishman

Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

Donald A. Migliori

Motley Rice, LLC
321 South Main St., 2nd Floor
Providence, RI 02903

Sheila M. Bossier

Bossier & Associates
1520 North State Steet
Jackson, MS 39202

Stuart L. Goldenberg

Goldenberg Law, PLLC
800 Lasalle Ave., #2150
Minneapolis, MN 55402

Christopher T. Kirchmer

Provost Umphrey Law Firm, LLP
490 Park St., P.O. Box 4905
Beaumont, TX 77704

Michael A. Kelly

Walkup, Melodia, Kelly & Schoenberger
650 California St.
San Francisco, CA 94108

Matthew McCarley

Fears Nachawati Law Firm
4925 Greenville Ave., Ste. 715
Dallas, TX 75206

Hadley L. Matarazzo

Faraci Lange, LLP
First Federal Plaza
28 East Main St., Ste. 1100
Rochester, NY 14614

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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 4 of 9

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Eric M. Terry

TorHoerman Law, LLC
101 W. Vandalia
Edwardsville, IL 62025

Joseph A. Osborne

Osborne & Associates Law Firm, PA
433 Plaza Real, Ste. 271
Boca Raton, FL 33432

Michael T. Gallagher

The Gallagher Law Firm, LLP
2905 Sackett Street
Houston, TX 77098

Nate Van Der Veer

Farris, Riley & Pitt LLP
The Financial Center
505 20th Street North
Birmingham, AL 35203

Matthew Schultz

Levin Papantonio Thomas Mitchell Rafferty
Proctor, PA
316 S. Baylen St.
Suite 600
Pensacola FL 32502

Steven Rotman

Hausfeld, LLP
1700 K Street NW
Suite 650
Washington DC 20006

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II.

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Responsibilities
A.

19

Procedural Matters
1.

As noted in this Court’s previous Order Setting Initial Case

20

Management Conference dated September 15, 2015, the Clerk of this Court will maintain

21

a master docket case file under the style “In Re: Bard IVC Filters Products Liability

22

Litigation” and the identification “MDL No. 2641.” Lead/Liaison will be (a) the only

23

attorneys permitted to file in the Master Docket as to all actions, and (b) the only attorneys

24

receiving Notices of Electronic Filing for pleadings and orders filed in the Master Docket

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for all actions.

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2.

With regard to the Master Docket, Plaintiffs’ Lead/Liaison Counsel

shall:
a.

Serve as the recipient for all Court orders.
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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 5 of 9

b.

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Coordinate service and filings for all plaintiffs whether
presently included or subsequently added.

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c.

3

Maintain and distribute to co-counsel and to Defendants’
Counsel an up-to-date service list.

4
d.

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Maintain responsibility for service upon all other attorneys

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and parties as to filings made in the master docket.

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Specifically,

8

distribute, to all other Plaintiffs’ counsel, pleadings orders, and

9

motions by email, overnight courier service, or telecopier,

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within two days after receipt, unless such service has been

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waived, in writing, by a receiving counsel.
e.

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Lead/Liaison

Counsel

shall

receive

and

Coordinate discovery and litigation with similar cases outside
of this Court's jurisdiction.

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3.

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Lead/Liaison Counsel is only responsible for service with regard to

15

filings in the Master Docket. With regard to case-specific filings, all attorneys of record in

16

the relevant member action will receive a Notice of Electronic Filing from the Court.
4.

17

New counsel for later-filed or later-transferred cases that become part

18

of this MDL shall be responsible for checking the Master Docket for all orders previously

19

entered that may have relevance to such new cases.
B.

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In addition to the responsibilities identified above, Plaintiffs’ Lead/Liaison Counsel

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Responsibilities Specific to Lead/Liaison Counsel

shall:
1.

Coordinate the establishment of a document depository, real or

virtual, to be available to all participating plaintiffs’ counsel;
2.

Maintain and make available to all participating plaintiffs’ counsel of

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record, at reasonable hours, a complete file of all documents served by or upon each party

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(except documents as may be available at a document depository);

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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 6 of 9

3.

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2

Prepare agendas for court conferences and periodically report

regarding the status of the case; and
4.

3

Carry out such other duties as the Court may order.

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C.

5

The PEC shall assist, advise, and collaborate with Co-Lead Counsel in the

6

discharge of duties of liaison and Co-Lead Counsel outlined in Sections II. A and B

7

above. The PEC, with the authority of Co-Lead counsel, and in coordination with their

8

efforts and responsibilities, shall assist and collaborate with Co-Lead Counsel in the

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administration, organization, and strategic decisions of the PLC. At the direction of Co-

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Lead Counsel PEC members shall have the authority to make, supervise and oversee

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assignments to other PSC members.

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D.

Responsibilities of Plaintiffs’ Executive Committee

Responsibilities Applicable to all Plaintiffs’ Leadership Counsel

Plaintiffs’ Leadership Counsel shall have the following responsibilities:
5.

Discovery
a.

Initiate, coordinate, and conduct all pretrial discovery on

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behalf of plaintiffs in all actions which are consolidated with

17

this MDL.

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b.

Develop and propose schedules for the commencement,

19

execution, and completion of all discovery on behalf of all

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plaintiffs.

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c.

Cause to be issued in the name of all plaintiffs the necessary

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discovery requests, motions and subpoenas pertaining to any

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witnesses and documents needed to properly prepare for the

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pretrial of relevant issues found in the pleadings of this

25

litigation.

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d.

Conduct all discovery in a coordinated and consolidated
manner on behalf and for the benefit of all plaintiffs.

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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 7 of 9

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6.

Hearings and Meetings
a.

2

Call meetings of counsel for plaintiffs for any appropriate

3

purpose, including coordinating responses to questions of

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other parties or of the Court. Initiate proposals, suggestions,

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schedules or joint briefs, and any other appropriate matters

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pertaining to pretrial proceedings.
b.

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Examine witnesses and introduce evidence on behalf of
plaintiffs at hearings.

8
c.

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Act as spokespersons for all plaintiffs at pretrial proceedings

10

and in response to any inquiries by the Court, subject to the

11

right of any plaintiff’s counsel to present non-repetitive

12

individual or different positions.

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14

7.

Miscellaneous
a.

Submit and argue all verbal and written motions presented to

15

the Court on behalf of Plaintiff’s Leadership Counsel as well

16

as oppose when necessary any motion submitted by

17

defendants or other parties which involve matters within the

18

sphere of the responsibilities of Plaintiffs’ Leadership

19

Counsel.

20

b.

Negotiate and enter into stipulations with defendants regarding

21

this litigation. All stipulations entered into by Plaintiffs’

22

Leadership Counsel, except for strictly administrative details

23

such as scheduling, must be submitted for Court approval and

24

will not be binding until ratified by the Court. Any attorney

25

not in agreement with a non-administrative stipulation shall

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file with the Court a written objection within five (5) days

27

after he/she knows or should have reasonably become of

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aware of the stipulation. Failure to object within the term
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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 8 of 9

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allowed shall be deemed a waiver and the stipulation will

2

automatically be binding on that party.
c.

3

Explore, develop, and pursue all settlement options pertaining

4

to any claim or portion thereof of any case filed in this

5

litigation.
d.

6

Maintain adequate files of all pretrial matters, including

7

establishing

and

maintaining

a

document

or

exhibit

8

depository, in either real or virtual format, and having those

9

documents available, under reasonable terms and conditions
for examinations by all MDL plaintiffs or their attorneys.

10
e.

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Perform any task necessary and proper for Plaintiffs

12

Leadership Counsel to accomplish its responsibilities as

13

defined

14

subcommittees comprised of plaintiffs’ lawyers not on

15

Plaintiffs’ Leadership Counsel.
f.

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Work

by

with

the

Court’s

Lead/Liaison

orders,

Counsel

including

to

organizing

coordinate

the

17

responsibilities of Plaintiffs’ Leadership Counsel meetings,

18

keep minutes or transcripts of these meetings, appear at

19

periodic Court-noticed status conferences, perform other

20

necessary administrative or logistic functions of Plaintiffs’

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Leadership Counsel, and carry out any duty as ordered by the

22

Court.
g.

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by further Court Orders.

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25

Perform other such functions that may be expressly authorized

E.

Reimbursement of Costs Expended

26

Plaintiffs’ Leadership Counsel shall be entitled to seek reimbursement for costs

27

expended at the time and in a manner approved by the Court. Reimbursements will be

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Case 2:15-md-02641-DGC Document 5285 Filed 03/21/17 Page 9 of 9

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governed by a further case management order to be proposed by Plaintiffs’ Leadership

2

Counsel and entered by the Court.

3

III.

Term of Appointments.

4

Appointment of all leadership positions in this order shall last until November 16,

5

2017 unless terminated earlier by the Court. Thirty days before the expiration of this

6

term, Lead/Liaison Counsel shall file a memorandum notifying the Court of the need to

7

make further appointments and making recommendations regarding those appointments.

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Dated this 21st day of March, 2017.

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Case 2:15-md-02641-DGC Document 5770 Filed 05/05/17 Page 1 of 4

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6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 23

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11
12
13

The Court held a 9th case management conference on May 3, 2017.

The

14

conference addressed ongoing matters identified in the parties’ joint report. Doc. 5708.

15

The following matters were decided.

16

A.

Deadline for Expert Depositions.
The Court extended the deadline for completing expert depositions to July 31,

17
18

2017.

19

B.

Bellwether Cases.

20

The Court heard oral arguments on which cases should be selected for bellwether

21

trials. After considering the parties’ arguments and their detailed submissions, the Court

22

selects the following five bellwether cases: Mulkey, Hyde, Jones, Kruse, and Booker.

23

The Court will not choose a sixth bellwether case at this time. The Court finds

24

that Nelson, a strong candidate, is very similar to Jones, and therefore may not provide

25

the range of information hoped for from bellwether trials. The Court finds Peterson to be

26

a strong candidate, but selecting Peterson would mean that 33% of the bellwether trials

27

involve open surgeries when only 6% of the cases in this MDL involve such surgeries,

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making the overall mix less than fully representative. Tinlin presents the same issue as

Case 2:15-md-02641-DGC Document 5770 Filed 05/05/17 Page 2 of 4

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Peterson, and also involves an extremely ill plaintiff who would be required to travel

2

from out of state and endure the rigors of trial. For reasons stated on the record, the

3

Court does not view King or Mixson as helpful bellwether cases. The DeWitt case

4

includes some uncertainty due to surgery scheduled this month, but may be a candidate

5

when the sixth case is selected.

6

The Court will select the sixth bellwether case from Discovery Group 1 after two

7

bellwether trials have been completed.1 Because each bellwether trial will last up to three

8

weeks, and the Court has a full docket to manage in the interim, it is likely that trials of

9

the bellwether cases will spread over more than one year. Thus, there will be time to

10

complete the case-specific discovery and motion practice for a sixth bellwether trial after

11

two bellwether trials have been completed. In choosing the sixth case, the Court will take

12

into account the results of the first two trials and will endeavor to select a case that will

13

produce the most representative bellwether trials possible from Discovery Group 1.

14

Plaintiffs want to re-depose doctors in the Hyde case. The parties should address

15

this issue in the joint status report they present for the next status conference. The parties

16

should include relevant examples of testimony or objections from the depositions of

17

Hyde’s doctors to illustrate their respective positions.

18

C.

Daubert and Summary Judgment Motions.

19

By August 21, 2017, the parties shall file Daubert motions and any motions for

20

summary judgment on the five bellwether cases identified above. Responses shall be

21

filed by September 22, 2017. Replies shall be filed by October 13, 2017.2

22

D.

Science Day.

23

The Court will likely schedule a science day during the next status conference.

24

The science day will be held shortly before oral arguments on the Daubert and summary

25

judgment motions.

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1

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Although the Court declines to order the trials now, it may make sense to try
Jones and Booker first in order to facilitate a more informed selection of the sixth case.
2

This schedule is a bit longer than the parties proposed, due to the large number of
possible motions the parties described during the case management conference.
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Case 2:15-md-02641-DGC Document 5770 Filed 05/05/17 Page 3 of 4

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E.

Defendants’ Preemption Motion.

2

The Court declines to accept Plaintiffs’ proposal that this motion be briefed

3

initially solely on the law. A decision on law-only arguments would not be possible until

4

late June at the earliest, and may need to be followed by discovery and re-briefing. Such

5

potential delay would be unwise in light of the demands on the parties and the Court that

6

will arise this fall due to the Daubert and summary judgment motions.

7

The Court will allow Plaintiffs to depose Mr. Carr and Mr. Van Vleet on matters

8

addressed in Defendants’ summary judgment motion. These depositions shall not exceed

9

four hours each. The Court also concludes that Plaintiffs should be permitted to present

10

expert opinions in opposition to Defendants’ preemption motion, if they choose. Because

11

the parties did not address a possible schedule for production of relevant expert opinions

12

and depositions of those experts, the Court is unable to set a specific schedule. The Court

13

directs the parties to confer and agree, if possible, on a procedure and schedule for

14

completing the Carr and Van Vleet depositions and necessary expert discovery, followed

15

by completion of briefing on the preemption motion. The parties shall include a briefing

16

schedule for Defendants’ motion to seal documents related to the preemption motion.

17

The parties should present their agreement to the Court, or their respective positions if

18

they are unable to agree, by May 12, 2017.

19

submissions and set an appropriate schedule.

20

F.

21

The Court will review the parties’

Other Matters.
1.

The Court will set a date for remanding mature cases at a future status

22

conference. The cases cannot be remanded until Daubert motions are decided, and the

23

amount of time required to decide those motions is presently unclear.

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2.

The Court agreed that Dr. Desai may be deposed on June 6, 2017 in the

Barazza class action.
3.

The parties indicated that there may be between 17 and 20 Daubert motions

filed in August. If so, the Court will not be able to decide all of those motions before the

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Case 2:15-md-02641-DGC Document 5770 Filed 05/05/17 Page 4 of 4

1

end of this year.3 The Court hopes to have them all decided by year’s end. This will

2

permit bellwether trials to begin in early 2018.

3

4.

The parties and the Court discussed changes to the proposed bellwether

4

protocol. If the parties have not already done so, they shall submit a revised version to

5

the Court promptly.

6

5.

The Court will hold another case management conference on July 13, 2017

7

at 4:00 p.m. The dial-in information for the case management conference is: 888-240-

8

3210, access code: 2194741. The parties on the phone are reminded to mute their phones

9

once connected to the conference call line to minimize the amount of background noise.

10
11

The parties shall provide a joint status report by July 7, 2017.
Dated this 5th day of May, 2017.

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3

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As the current chair of the Committee on Rules of Practice and Procedure for the
federal courts, the undersigned must attend six meetings outside Arizona in September,
October, and November. This travel schedule, plus the Court’s regular docket, means the
Court will not be able to decide this volume of Daubert and summary judgment motions
within a month or two.
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Case 2:15-md-02641-DGC Document 5881 Filed 05/19/17 Page 1 of 5

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2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10
11

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-2641-PHX DGC
CASE MANAGEMENT ORDER
NO. 23

12

(Discovery Protocols for Bellwether
Group 1)

13
14
15

Pursuant to Case Management Order No. 11 [Doc. 1662], No. 18 [Doc. 3685],

16

No. 19 [Doc. 4311], No. 20 [Doc. 4335], and No. 21 [Doc. 4866], the Court enters this

17

Case Management Order No. 23 regarding discovery to be conducted specific to the cases

18

in Bellwether Group 1.

19

I.

DEPOSITION PROTOCOLS GENERALLY

20

A.

Case Management Order No. 14 shall apply to Bellwether Group 1.

21

B.

The additional protocols of this Case Management Order shall also apply to
Bellwether Group 1 as provided herein.

22
23
24

II.

FACT WITNESS DEPOSITIONS PERMITTED
A.

Commencing three (3) days after the Court’s selection of the Bellwether

25

Group 1 cases, the Parties may each take not more than five depositions of

26

case relevant fact (non-expert) witnesses in each case that is part of

27

Bellwether Group I. These depositions may include Bard present or former

28

Case 2:15-md-02641-DGC Document 5881 Filed 05/19/17 Page 2 of 5

1

employees only if the depositions will likely produce probative evidence

2

that could not reasonably have been obtained during general discovery.

3

B.

Court.

4
5

The parties may exceed this number by mutual agreement or Order of the

C.

The parties shall make a good faith effort to identify the case relevant fact

6

witnesses they intend to depose in each case in accordance with Section

7

II.A. above, and exchange lists of those witnesses by May 12, 2017.

8

D.

Thereafter, the parties shall make a good faith effort, on a rolling basis, and

9

in accordance with Section II.A. above, to identify any additional case

10

relevant witnesses they intend to depose, as soon as those witnesses become

11

known to them or they determine the need to depose the witness.

12

E.

Should either party object to the taking of a deposition proposed by the

13

other party, including objecting that one or more of the identified case

14

specific depositions are disproportionate to the needs of the case (even if the

15

requesting party has not exceeded the numerical limitation set forth in

16

Section II.A. above), the parties will meet and confer on that issue, and

17

failing resolution, shall notify the Court of their need for a ruling on the

18

propriety of deposing such witness(es).

19
20

F.

Examination of treating physicians.
1.

By no later than five (5) days following the Court's selection of

21

Bellwether Group 1, Plaintiffs shall supplement the list they provided

22

pursuant to CMO 21 of physicians whom they have a good faith

23

belief they would call as witnesses in their case in chief for each

24

Bellwether Group 1 case. By no later than ten (10) days thereafter,

25

Defendants shall supplement the list they provided pursuant to CMO

26

21 of physicians not identified by Plaintiffs whom Defendants have a

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Case 2:15-md-02641-DGC Document 5881 Filed 05/19/17 Page 3 of 5

1

good faith belief they would call in their case in chief for each

2

Bellwether Group 1 case.
2.

3

For any physician deposed in Bellwether Group 1:

4

a. Plaintiffs' counsel shall be the first examiner for any physician

5

Plaintiffs identified in response to Paragraph II.B.1 of CMO 21 or

6

they have identified timely under Para. II. B. 1 to this Order; and

7

b. Defendants' counsel shall be the first examiner for any physician

8

Defendants identified in response to Paragraph II.B.1 of CMO 21

9

or they have identified timely under Para. II. B. 1 to this Order.

10
11

III.

PROTOCOLS RELATING TO TREATING PHYSICIANS
A.

Ex Parte Communications with Treating Physicians
1.

12

Plaintiffs’ treating physicians.

13
2.

14

17

Plaintiffs’ counsel may communicate ex parte with treating
physicians.

15
16

Defendants are prohibited from communicating ex parte with

B.

Disclosure of Documents Prior to Depositions of Treating Physicians
1.

If Plaintiffs' counsel has communicated ex parte with a treating

18

physician who will be deposed, Plaintiffs' counsel shall identify by

19

production bates number (or by providing a copy if no such bates

20

numbers exist) to opposing counsel all documents provided, shown,

21

read from, or otherwise specifically described to the witness, other

22

than the physician's records of treatment, at least five (5) days prior

23

to the deposition, those five days to include and count weekends and

24

holidays.

25
26

2.

For ex parte meetings with a physician that take place less than five
(5) days prior to the deposition:

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Case 2:15-md-02641-DGC Document 5881 Filed 05/19/17 Page 4 of 5

1

a. at least 24 hours prior to the meeting, counting weekends and

2

holidays, Plaintiffs' counsel shall identify by production bates

3

number (or by providing a copy if no such bates numbers exist) to

4

opposing counsel all documents they intend to provide, show,

5

read from, or otherwise specifically describe to the witness, other

6

than the physician's records of treatment;

7

b. as soon as practicable after the meeting, Plaintiffs' counsel shall

8

disclose to opposing counsel all documents that were actually

9

provided, shown, read from, or otherwise specifically described to
the witness, other than the physician's records of treatment.

10
3.

11

At least five (5) days, counting weekends and holidays, prior to a

12

physician deposition, all examining counsel shall provide to opposing

13

counsel and deponent’s counsel copies of documents that may be

14

shown to the witness during the deposition or about which counsel

15

expects to examine a deponent, other than the physician’s records of

16

treatment. The obligations of this section include the good faith

17

representations of counsel to identify only those documents actually

18

intended to be utilized during the deposition, not to exceed 40 in

19

number.

20
21

IV.

EXPERT WITNESS DEPOSITIONS
A.

Commencing on June 20, 2017 and no later than July 30, 2017, the parties

22

may take the depositions of all case specific expert witnesses disclosed for

23

Bellwether Group 1 cases, limited to their case specific opinions if those

24

witnesses are also experts previously disclosed as general MDL experts.

25
26
27
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Case 2:15-md-02641-DGC Document 5881 Filed 05/19/17 Page 5 of 5

1
2
3

V.

TRIAL DEPOSITIONS
A.

For good cause shown, and either by stipulation of the Parties or order of the

Court, trial preservation testimony of previously deposed witnesses will be permitted.

4
5

Dated this 18th day of May, 2017.

6
7
8
9
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12
13
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16
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24
25
26
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Case 2:15-md-02641-DGC Document 5883 Filed 05/19/17 Page 1 of 5

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10
11

IN RE: Bard IVC Filters Products Liability
Litigation,

No. MDL 15-2641-PHX DGC
AMENDED

12

CASE MANAGEMENT ORDER
NO. 24

13

(Discovery Protocols for Bellwether
Group 1)

14
15
16

Pursuant to Case Management Order No. 11 [Doc. 1662], No. 18 [Doc. 3685],

17

No. 19 [Doc. 4311], No. 20 [Doc. 4335], and No. 21 [Doc. 4866], the Court enters this

18

Case Management Order No. 24 regarding discovery to be conducted specific to the cases

19

in Bellwether Group 1.

20

I.

DEPOSITION PROTOCOLS GENERALLY

21

A.

Case Management Order No. 14 shall apply to Bellwether Group 1.

22

B.

The additional protocols of this Case Management Order shall also apply to
Bellwether Group 1 as provided herein.

23
24
25

II.

FACT WITNESS DEPOSITIONS PERMITTED
A.

Commencing three (3) days after the Court’s selection of the Bellwether

26

Group 1 cases, the Parties may each take not more than five depositions of

27

case relevant fact (non-expert) witnesses in each case that is part of

28

Bellwether Group I. These depositions may include Bard present or former

Case 2:15-md-02641-DGC Document 5883 Filed 05/19/17 Page 2 of 5

1

employees only if the depositions will likely produce probative evidence

2

that could not reasonably have been obtained during general discovery.

3

B.

Court.

4
5

The parties may exceed this number by mutual agreement or Order of the

C.

The parties shall make a good faith effort to identify the case relevant fact

6

witnesses they intend to depose in each case in accordance with Section

7

II.A. above, and exchange lists of those witnesses by May 12, 2017.

8

D.

Thereafter, the parties shall make a good faith effort, on a rolling basis, and

9

in accordance with Section II.A. above, to identify any additional case

10

relevant witnesses they intend to depose, as soon as those witnesses become

11

known to them or they determine the need to depose the witness.

12

E.

Should either party object to the taking of a deposition proposed by the

13

other party, including objecting that one or more of the identified case

14

specific depositions are disproportionate to the needs of the case (even if the

15

requesting party has not exceeded the numerical limitation set forth in

16

Section II.A. above), the parties will meet and confer on that issue, and

17

failing resolution, shall notify the Court of their need for a ruling on the

18

propriety of deposing such witness(es).

19
20

F.

Examination of treating physicians.
1.

By no later than five (5) days following the Court's selection of

21

Bellwether Group 1, Plaintiffs shall supplement the list they provided

22

pursuant to CMO 21 of physicians whom they have a good faith

23

belief they would call as witnesses in their case in chief for each

24

Bellwether Group 1 case. By no later than ten (10) days thereafter,

25

Defendants shall supplement the list they provided pursuant to CMO

26

21 of physicians not identified by Plaintiffs whom Defendants have a

27
28
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Case 2:15-md-02641-DGC Document 5883 Filed 05/19/17 Page 3 of 5

1

good faith belief they would call in their case in chief for each

2

Bellwether Group 1 case.
2.

3

For any physician deposed in Bellwether Group 1:

4

a. Plaintiffs' counsel shall be the first examiner for any physician

5

Plaintiffs identified in response to Paragraph II.B.1 of CMO 21 or

6

they have identified timely under Para. II. B. 1 to this Order; and

7

b. Defendants' counsel shall be the first examiner for any physician

8

Defendants identified in response to Paragraph II.B.1 of CMO 21

9

or they have identified timely under Para. II. B. 1 to this Order.

10
11

III.

PROTOCOLS RELATING TO TREATING PHYSICIANS
A.

Ex Parte Communications with Treating Physicians
1.

12

Plaintiffs’ treating physicians.

13
2.

14

17

Plaintiffs’ counsel may communicate ex parte with treating
physicians.

15
16

Defendants are prohibited from communicating ex parte with

B.

Disclosure of Documents Prior to Depositions of Treating Physicians
1.

If Plaintiffs' counsel has communicated ex parte with a treating

18

physician who will be deposed, Plaintiffs' counsel shall identify by

19

production bates number (or by providing a copy if no such bates

20

numbers exist) to opposing counsel all documents provided, shown,

21

read from, or otherwise specifically described to the witness, other

22

than the physician's records of treatment, at least five (5) days prior

23

to the deposition, those five days to include and count weekends and

24

holidays.

25
26

2.

For ex parte meetings with a physician that take place less than five
(5) days prior to the deposition:

27
28
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Case 2:15-md-02641-DGC Document 5883 Filed 05/19/17 Page 4 of 5

1

a. at least 24 hours prior to the meeting, counting weekends and

2

holidays, Plaintiffs' counsel shall identify by production bates

3

number (or by providing a copy if no such bates numbers exist) to

4

opposing counsel all documents they intend to provide, show,

5

read from, or otherwise specifically describe to the witness, other

6

than the physician's records of treatment;

7

b. as soon as practicable after the meeting, Plaintiffs' counsel shall

8

disclose to opposing counsel all documents that were actually

9

provided, shown, read from, or otherwise specifically described to
the witness, other than the physician's records of treatment.

10
3.

11

At least five (5) days, counting weekends and holidays, prior to a

12

physician deposition, all examining counsel shall provide to opposing

13

counsel and deponent’s counsel copies of documents that may be

14

shown to the witness during the deposition or about which counsel

15

expects to examine a deponent, other than the physician’s records of

16

treatment. The obligations of this section include the good faith

17

representations of counsel to identify only those documents actually

18

intended to be utilized during the deposition, not to exceed 40 in

19

number.

20
21

IV.

EXPERT WITNESS DEPOSITIONS
A.

Commencing on June 20, 2017 and no later than July 30, 2017, the parties

22

may take the depositions of all case specific expert witnesses disclosed for

23

Bellwether Group 1 cases, limited to their case specific opinions if those

24

witnesses are also experts previously disclosed as general MDL experts.

25
26
27
28
-4-

Case 2:15-md-02641-DGC Document 5883 Filed 05/19/17 Page 5 of 5

1
2
3

V.

TRIAL DEPOSITIONS
A.

For good cause shown, and either by stipulation of the Parties or order of the

Court, trial preservation testimony of previously deposed witnesses will be permitted.

4
5

Dated this 19th day of May, 2017.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-

Case 2:15-md-02641-DGC Document 6227 Filed 06/06/17 Page 1 of 2

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 25

10
11

(Bellwether Group
Discovery Schedule)

12

1

Amended

13
14
Pursuant to the stipulation of the parties to amend the discovery schedule for the

15
16

cases in Bellwether Group 1,
I T I S O R D E R E D amending the Bellwether Discovery Schedule, the new

17
18

schedule is as follows:

19

Action

20

Plaintiffs’ case-specific expert disclosures

21
22

Defendants’ case-specific expert

25

Case-specific rebuttal expert disclosures for
Bellwether Group 1
Deadline for completion of additional casespecific medical witness depositions for
Bellwether Group 1

26

Deadline for case-specific expert

27

Deadline for completion of additional casespecific discovery other than medical
witness depositions for Bellwether Group 1

23
24

28

Date/deadline
June 5, 2017
July 3, 2017
July 17, 2017
August 7, 2017

August 7, 2017
August 15, 2017

Case 2:15-md-02641-DGC Document 6227 Filed 06/06/17 Page 2 of 2

1

This Order amends and replaces the dates set forth in Case Management Order No.

2

20 with respect to the same deadlines for Bellwether Group 1.

3

Dated this 6th day of June, 2017.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-2-

Case 2:15-md-02641-DGC Document 6799 Filed 07/17/17 Page 1 of 5

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 26

10
11
12
13
14

The Court held a tenth case management conference on July 13, 2017. The

15

conference addressed ongoing matters identified in the parties’ joint report. Doc. 6599.

16

The following matters are decided.

17

A.

18

In order to decide whether Dr. Henry should be re-deposed, the Court must decide

19

whether the objections asserted in his first deposition were appropriate. On or before

20

July 28, 2017, the parties shall file memoranda, not to exceed 12 pages, addressing the

21

following issues: (1) Does Federal Rule of Evidence 501 apply to the privilege asserted

22

by Dr. Henry’s counsel? (2) If so, what state law supplies the rule of decision within the

23

meaning of Rule 501? (3) Does the applicable state law support the objection and

24

instruction made by Dr. Henry’s attorney? (4) Even if the instruction and objection were

25

appropriate in the normal case, does assertion of the learned intermediary defense mean

26

that the objection and instruction should not be permitted?

27
28

Dr. Henry Deposition.

Case 2:15-md-02641-DGC Document 6799 Filed 07/17/17 Page 2 of 5

1

B.

2

Case Management Order No. 24 addressed fact depositions in bellwether cases:

3

“These depositions may include Bard present or former employees only if the depositions

4

will likely produce probative evidence that could not reasonably have been obtained

5

during general discovery.” Doc. 5883 at 1-2. After considering the parties’ arguments,

6

the Court concludes that the evidence Plaintiffs now seek to elicit from Dr. Altonaga

7

could reasonably have been obtained during general discovery. Plaintiffs do not seek

8

facts unique to any of the bellwether cases, but instead to obtain Bard information that

9

existed at the time of the design, sale, and use of the various filters at issue in the

Proposed Deposition of Dr. Altonaga.

10

bellwether cases.

11

discovery, Plaintiffs clearly understood that most of the cases in this MDL concern the

12

G2-series or Eclipse filters, and could have deposed Dr. Altonaga during general

13

discovery regarding facts related to those filters and the years in which they were offered

14

for sale. As a result, the requirement of CMO 24 is not satisfied and the Court will not

15

permit Plaintiffs to depose Dr. Altonaga as part of bellwether-case discovery.

While bellwether cases had not been identified during general

16

C.

17

The Court and parties held a discussion regarding the discoverability of

18

communications between Plaintiffs’ experts, with the Court attempting to provide some

19

guidance on its interpretation of Rule 26(b)(4). Plaintiffs shall produce communications

20

among their experts to Defendants. If Plaintiffs conclude that any such communications

21

are properly withheld, they shall provide Defendants with a privilege log that identifies

22

the specific basis on which Plaintiffs’ conclude that the communications are protected

23

under Rule 26(b). If the parties have disagreements after this production has occurred,

24

they should place a conference call to the Court for a resolution.

Communications Among Plaintiffs’ Experts.

25

D.

26

The Court sets the following schedule for completion of briefing on Defendants’

27

Preemption Motion Briefing.

preemption motion for summary judgment:

28

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Case 2:15-md-02641-DGC Document 6799 Filed 07/17/17 Page 3 of 5

1

 Plaintiffs’ experts on preemption shall be disclosed by July 21, 2017;

2

 Defense experts on preemption, if sought by Defendants and allowed by

3

the Court after a conference call, shall be disclosed by August 4, 2017;

4

 Preemption experts shall be deposed by August 18, 2017;

5

 Plaintiffs’ response to Defendants’ motion shall be filed by

6

September 1, 2017;
 Defendants’ reply shall be filed by September 22, 2017.

7
8

Defendants’ motion to seal exhibits will be briefed on the following schedule:
 Defendants’ amended motion to seal shall be filed on or before July 28,

9
10

2017;

11

 Plaintiffs’ response shall be filed on or before August 28, 2017;

12

 Defendants’ reply shall be filed on or before September 13, 2017.

13

E.

14

The Court will allow 45 minutes per side for oral argument at the class

15

certification hearing on August 11, 2017. The Court does not expect this to be an

16

evidentiary hearing.

Class Certification Hearing.

17

F.

18

The next case management conference will be held on October 5, 2017, at 10:00

19

a.m. The parties shall file a joint report seven days before the conference.

20
21

Next Case Management Conference and Science Day.

A science day will also be held on October 5, 2017. The Court will set aside two
hours per side for science presentations.

22

G.

23

Plaintiffs shall respond to the recently filed motion to disqualify Drs. Vogelzang

24

and Desai by July 28, 2017. Defendants shall file a reply by August 4, 2017. The Court

25

will endeavor to review this motion before the class certification hearing on August 11,

26

2017.

Motions to Disqualify Experts.

27
28

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Case 2:15-md-02641-DGC Document 6799 Filed 07/17/17 Page 4 of 5

1

H.

2

The Court and the parties discussed preparation for and scheduling of bellwether

3

trials. The Court advised the parties that it cannot know whether bellwether trials will be

4

possible in the first quarter of 2018 until it sees the volume and substance of the Daubert

5

motions and motions for summary judgment to be filed in late August. The Court and

6

parties will address the scheduling of bellwether trials on October 5, 2017.

Bellwether Trial Issues.

7

The Court advised the parties that it may be very difficult for the Court to conduct

8

all six bellwether trials within a 12 or 18 month period, given the Court’s docket and

9

administrative responsibilities. The Court raised the possibility of enlisting other judges

10

to try some of the bellwether cases. If such an approach were taken, the trials probably

11

could be scheduled over the course of a year or 18 months, dates could be blocked out,

12

and the other judges could be identified. The parties should address this issue in the joint

13

report to be filed before the conference on October 5, 2017.

14

The Court advised the parties of its practices regarding a final pretrial conference

15

and motions in limine. The Court also stated that it would be willing to entertain the

16

possibility of juror questionnaires.

17

I.

18

The Court and parties discussed choice of law issues that might arise in the

19

bellwether cases. The Court asked the parties to discuss this issue and see if they can

20

agree on a method for briefing. It may be that such briefing needs to occur as part of the

21

summary judgment briefing, particularly since a choice of law will not be necessary

22

unless the law of the possible jurisdictions is in conflict on specific points raised in the

23

summary judgment briefing. If the parties need the Court’s guidance on this matter

24

before summary judgment briefs are filed, they may place a telephone call to the Court.

Other Matters.

25

The Court will also require the parties to discuss bellwether summary judgment

26

motions before they are filed on August 21, 2017. The purpose of such discussion will be

27

to identify claims that Plaintiffs intend to assert in each of the bellwether cases and

28

arguments Defendants intend to make with respect to such claims. The parties should

-4-

Case 2:15-md-02641-DGC Document 6799 Filed 07/17/17 Page 5 of 5

1

endeavor to focus and streamline the briefing wherever possible. If issues are to be

2

addressed that apply to some or all of the bellwether cases, they should be briefed only

3

once. The parties should also endeavor to make the statements of fact as efficient as

4

possible.

5

Dated this 14th day of July, 2017.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 8113 Filed 10/10/17 Page 1 of 3

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 27

10
11
12
13
14
15

The Court held an eleventh case management conference on October 5, 2017. The
conference addressed ongoing matters identified in the parties’ joint report. Doc. 7854.

16

A.

17

Defendants asked the Court to require Plaintiffs to include in their privilege log

18

any communications withheld from production that occurred between experts, even if

19

they included a lawyer. After discussion, the Court declined to require a privilege log.

20

Instead, Plaintiffs shall provide the Court all such communications that they have

21

withheld, for in camera review. The Court will randomly select ten communications and

22

review them for privilege.

23

October 13, 2017.

24

Privilege Issues.

Plaintiffs shall provide these documents on or before

Defendants also expressed concern about the method used for collecting email

25

communications among Plaintiffs’ experts at Northwestern University.

The Court

26

directed Plaintiffs’ counsel to communicate with these experts, particularly in light of one

27

email that was provided by Defendants at the hearing, to ensure that all communications

28

have been produced. Plaintiffs shall do so no later than October 13, 2017.

Case 2:15-md-02641-DGC Document 8113 Filed 10/10/17 Page 2 of 3

1

B.

2

The Court will hold motion hearings on November 17, 2017 at 1:00 p.m.,

3

December 15, 2017 at 1:00 p.m., and January 19, 2018 at 1:00 p.m. These hearings

4

will concern pending Daubert motions, motions to disqualify experts, and motions for

5

summary judgment. The motion for summary judgment on preemption will be heard on

6

November 17, 2017 at 1:00 p.m. The parties shall meet and confer regarding the

7

motions to be heard on these dates and shall submit their joint proposal to the Court by

8

October 13, 2017.

9

C.

Motion Hearings.

Scheduling of Bellwether Trials.

10

The Booker bellwether trial will be held on March 13-16, 20-23, and 27-30,

11

2018. The Jones bellwether trial will be held on May 15-18, 22-25, and 29-30, and

12

June 1, 2018. The Court will schedule other bellwether trials, and will set dates for final

13

pretrial conference in Booker and Jones, at coming status conferences.

14

D.

15

The Court held a “science day” on October 5, 2017. The parties agreed at the

16

beginning of the discussion that it need not be on the record. Each side presented

17

relevant information in support of their position on various science issues in the case.

18

Each side also presented some information supporting their liability arguments in the

19

case. The Court listened for the purpose of understanding issues it will need to address in

20

upcoming motions hearings. The Court formed no view on the question of liability or the

21

merits of any motion as a result of the hearing, and returned all exhibits to the parties at

22

the end of the discussion.

Science Day.

23

E.

24

Plaintiffs have filed a for summary judgment motion in the Jones case. Doc. 7363.

25

Defendants stated at the conference that they have no opposition to the granting of the

26

motion. The Jones Plaintiffs’ motion for partial summary judgment on Defendants’

27

thirteenth affirmative defense (Doc. 7363) is therefore granted.

Plaintiffs’ Motion for Partial Summary Judgment.

28

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Case 2:15-md-02641-DGC Document 8113 Filed 10/10/17 Page 3 of 3

1

F.

2

The Court informed the parties of a matter it was exploring to ensure that recusal

3

was not necessary. The Court has completed that inquiry and concludes that recusal is

4

not necessary.

Additional Matter.

5

G.

6

The Court will hold a status conference after the motions arguments on

7

November 17, 2017 at 1:00 p.m. The parties shall file a joint status report on or before

8

November 14, 2017.

9

Next Status Conference.

Dated this 10th day of October, 2017.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 1 of 6

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 28

10
11
12
13

The Court held a twelfth case management conference on November 17, 2017.

14

The conference occurred after oral argument on two motions for summary judgment.

15

The conference addressed ongoing matters identified in the parties’ joint report.

16

Doc. 8851.

17

A.

Motion Hearings.

18

The Court heard Defendants’ motions for summary judgment on preemption and

19

the Booker case.

In preparation for the motions hearing to be held on

20

December 15, 2017 at 1:00 p.m., the Court will attempt to prepare for the next six

21

motions identified in Doc. 8172. If the Court is unable to do so, it will endeavor to notify

22

the parties before the December 15 hearing.

23

B.

Scheduling of Bellwether Trials.

24

Plaintiffs suggested that the Court and the parties be prepared to try the Jones case

25

or another bellwether case in March if the Booker case settles. This prompted questions

26

from the Court regarding the likelihood of settling bellwether cases. As the Court stated

27

in more detail on the record, the bellwether cases have been carefully selected to

28

represent cases consolidated in this MDL. The purpose of the bellwether trials is to give

Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 2 of 6

1

the parties insight into how their claims and defenses are received by juries, in the hope

2

of helping facilitate a global settlement before the cases are remanded to their original

3

jurisdictions. Selective settlements (or dismissals) of bellwether cases is inconsistent

4

with this purpose. The Court expects to try the five bellwether cases that have been

5

identified so far, and a sixth case if necessary, as mentioned in previous case management

6

orders. If the parties start eliminating bellwether cases through settlement or otherwise,

7

the Court will seriously consider whether further bellwether trials are justified. If the

8

process is not going to result in trial of a representative sample of cases, the Court’s

9

likely view will be that the MDL should be terminated and all cases returned to their

10

original districts. The primary purpose of the MDL – common discovery and ruling on

11

common issues – will have been accomplished, and the added benefit of bellwether trials

12

to assist the parties in resolving the litigation globally will be lost if settlements or

13

dismissals skew the representative nature of the bellwether cases.

14

The Court also stated that it does not see any need to begin working on a second

15

group of bellwether trials. The Court’s current view is that the trial of five or six cases

16

should provide the parties with ample information to achieve a global settlement if such a

17

settlement is possible.

18

C.

19

The Booker trial is set to begin on March 13, 2018. This assumes that the Court

20

can resolve the pending Daubert motions before that time. The Court will diligently

21

endeavor to do so.

22

conference will be held on February 23, 2018 at 2:00 p.m. In preparation for that

23

conference, the Court enters the following orders:

24

Scheduling for the Booker Trial.

1.

Assuming the Court can accomplish this goal, a final pretrial

The attorneys who will be responsible for the trial of the case shall

25

attend the final pretrial conference. Counsel shall bring their calendars so that trial

26

scheduling can be discussed.

27

2.

28

The parties jointly shall prepare a proposed final pretrial order and

shall lodge it with the Court no later than 4:00 p.m. on February 15, 2018. Preparation

-2-

Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 3 of 6

1

and lodging of the proposed final pretrial order in accordance with the requirements of

2

this order shall be deemed to satisfy the disclosure requirements of Rule 26(a)(3) of the

3

Federal Rules of Civil Procedure. The parties shall submit a copy of the proposed final

4

pretrial order to the Court in Word format to [e-mail].

5

3.

The proposed final pretrial order shall include the information

6

prescribed

7

www.azd.uscourts.gov under: (1) Judges’ Information, (2) Orders, Forms and

8

Procedures, and (3) David G. Campbell. Information shall not be set forth in the form of

9

a question, but shall be presented in concise narrative statements.

10

in

the

4.

Joint

Proposed

Final

Pretrial

Order

form

found

at

The Court will not allow the parties to offer any exhibit, witness, or

11

other evidence that was not disclosed in accordance with the provisions of this order and

12

the Federal Rules of Civil Procedure and listed in the proposed final pretrial order, except

13

to prevent manifest injustice.

14

documents should also be listed.

15
16
17

5.

Fed. R. Civ. P. 16(e).

Objections to witnesses and

Plaintiffs shall have the burden of initiating communications

concerning the proposed final pretrial order.
6.

The parties shall (a) number and mark exhibits in accordance with

18

the Exhibit Marking Instructions at www.azd.uscourts.gov under Judges and Courtrooms

19

and Orders, Forms and Procedures (such numbers shall correspond to exhibits numbers

20

listed in the proposed final pretrial order); (b) meet in person and exchange marked

21

copies of all exhibits to be used at trial no later than 14 days before the submission

22

deadline for the proposed final pretrial order; and (c) eliminate any duplicate exhibits

23

while meeting to exchange exhibits.

24

7.

The parties shall file and serve all motions in limine no later than

25

January 26, 2018.

26

February 9, 2018. Each motion in limine shall state with precision the evidence that is

27

the subject of the motion. The motions and responses must be concise and shall not

28

exceed three (3) pages in length. No replies shall be filed. Counsel shall be prepared to

Responses to motions in limine shall be filed on or before

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Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 4 of 6

1

argue the merits of such motions at the final pretrial conference. (Each side indicated that

2

it wishes to file one motion in limine longer than 3 pages. Permission is granted for one

3

such motion from each side.)

4

8.

The parties shall complete the following tasks by the time of the

5

lodging of the proposed final pretrial order:

6

(a)

7

The parties shall file a concise, stipulated description of the

case to be read to the jury panel during voir dire (no longer than 2 or 3 paragraphs).

8

(b)

The parties shall jointly file a proposed set of voir dire

9

questions. The voir dire questions shall be drafted in a neutral manner. To the extent

10

possible, the parties shall stipulate to the proposed questions. If the parties have any

11

disagreement about a particular question, they shall state the reason for their objection

12

below the question. The parties shall also provide, for the purposes of voir dire, a joint

13

master list of the witnesses who may be called at trial.

14

(c)

The parties shall file proposed jury instructions in accordance

15

with “Guidelines for Jury Instructions in Civil Cases” found at www.azd.uscourts.gov

16

under: (1) Judges and Courtrooms, (2) Orders, Forms and Procedures, and (3) David G.

17

Campbell.

18
19

(d)

Each party shall file a proposed form of verdict, including any

proposed special verdict forms or juror interrogatories.

20

(e)

The joint statement of the case, proposed voir dire questions,

21

proposed jury instructions, and forms of verdict shall be submitted in Word format to

22

[e-mail].

23

9.

In order to facilitate the creation of an accurate record, the parties

24

shall file a “Notice to Court Reporter” one week before trial containing the following

25

information that may be used at trial:

26

(a)

Proper names, including those of witnesses.

27

(b)

Acronyms.

28

(c)

Geographic locations.

-4-

Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 5 of 6

1

(d)

Technical (including medical) terms, names or jargon.

2

(e)

Case names and citations.

3

(f)

Pronunciation of unusual or difficult words or names.

4

10.

Counsel shall review Judge Campbell’s statement of Trial Conduct

5

and Decorum before the final pretrial conference. A copy can be found on the Court's

6

website at www.azd.uscourts.gov under: (1) Judges and Courtrooms, (2) Orders, Forms

7

and Procedures, and (3) David G. Campbell.

8

11.

Full and complete compliance with this Order shall be required by

9

the Court.

10

D.

11

The Court and the parties discussed whether a jury questionnaire would be

12

appropriate for the Booker case. The parties will confer on this issue. If they conclude a

13

questionnaire would be helpful, they shall present a proposed questionnaire to the Court

14

prior to the December 15, 2017 conference discussed below.

Jury Questionnaire.

15

E.

16

The parties and the Court discussed whether case-specific discovery should occur

17

in what have previously been referred to as “mature cases” – ten or so cases that were

18

close to trial when this MDL was organized. The Court anticipates that the parties and

19

the Court will be busy over the next few months preparing for motions hearings and trial.

20

The Court concludes that case-specific discovery in the mature cases should await their

21

remand, and will not authorize such discovery now.

Mature Cases.

22

F.

23

Plaintiffs suggested that the Court schedule meetings for the parties to discuss trial

24

preparation and how to expedite trial. The Court will leave it to the parties to schedule

25

such meetings.

Meetings of Counsel in Preparation for Trial.

26

G.

27

The Court will hold another case management conference after the motions

28

hearing on December 15, 2017. The parties shall file a joint status report five days

Next Case Management Conference.

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Case 2:15-md-02641-DGC Document 8871 Filed 11/21/17 Page 6 of 6

1
2

before the conference.
Dated this 21st day of November, 2017.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-6-

Case 2:15-md-02641-DGC Document 9415 Filed 12/21/17 Page 1 of 3

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 29

10
11
12

The Court held a thirteenth case management conference on December 15, 2017.

13

The conference occurred after oral argument on various expert motions, and addressed

14

ongoing matters identified in the parties’ joint report. Doc. 9245.

15

A.

Motion Hearings.

16

In preparation for the hearing to be held on January 19, 2018 at 1:00 p.m., the

17

Court will attempt to prepare for the motions related to experts Muehrcke, Hurst,

18

Eisenberg, Betensky, and McMeeking. See Doc. 8172. The Court will decide, without

19

oral argument, the motions related to experts Morris, Grassi, Garcia/Streiff, and the use

20

of criminal law standards. This will leave the Ritchie motion to be heard. The parties

21

should confer and decide whether one of the five motions scheduled for January 19 or the

22

Ritchie motion can be decided without oral argument. If so, an additional hearing will

23

not be needed. The Court likely will rule on the motion for summary judgment in the

24

Jones case after the bellwether trial in the Booker case.

25

B.

Scheduling of Bellwether Trials.

26

The Booker bellwether trial will begin on March 14, 2018. This is a day later than

27

originally scheduled and is necessitated by the Court’s schedule. The trial must be

28

completed by March 30, 2018, as the Court is fully committed the week of April 2, 2018.

Case 2:15-md-02641-DGC Document 9415 Filed 12/21/17 Page 2 of 3

1

The Court will allot 27 hours of trial time to Plaintiffs and 25 hours to Defendants.

2

This time will be counted against opening and closing statements, direct examination, and

3

cross-examination. The Court will advise the parties of the time they have used each day

4

at noon and at the end of the day.

5

C.

6

The Court plans to seat nine jurors. The parties have submitted a proposed jury

7

questionnaire. The Court will review the proposal and decide whether a questionnaire

8

should be used and, if so, the form of the questionnaire.

9

D.

Jury Questionnaire.

Motion to Certify Appeal.

10

Defendants ask the Court to certify its order on Defendants’ preemption motion

11

for summary judgment, dated November 22, 2017, for interlocutory appeal under 28

12

U.S.C. § 1292(b). Doc. 9244. The parties and the Court discussed this motion at the

13

December 15 conference.

14

A district court may certify an order for interlocutory appeal if it (1) involves a

15

controlling question of law (2) as to which there is a substantial ground for difference of

16

opinion and (3) an immediate appeal from the order may materially advance the ultimate

17

termination of the litigation. 28 U.S.C. § 1292(b). Although Defendants’ preemption

18

argument, if accepted, would constitute a controlling ruling of law, the Court cannot

19

conclude that there is substantial ground for difference of opinion or that an immediate

20

appeal would materially advance the ultimate termination of this litigation.

21

For reasons stated in its order (Doc. 8872), the Court finds that Plaintiffs’ claims

22

are not preempted. The Court does not view this as a close question. Although some

23

jurists have expressed concern about confusion in preemption law, this fact does not, in

24

the Court’s view, leave the issue addressed in the Court’s ruling open to substantial

25

question.

26

Further, the Court cannot conclude that an immediate appeal of its order would

27

materially advance the ultimate termination of cases in this MDL. As mentioned during

28

the conference, the Court certified an issue to the Ninth Circuit in August 2015. See

-2-

Case 2:15-md-02641-DGC Document 9415 Filed 12/21/17 Page 3 of 3

1

Smilovits v. First Solar Inc., 119 F. Supp. 3d 978, 1011 (D. Ariz. 2015). The Court of

2

Appeals accepted review in November 2015, but no decision has been issued. This level

3

of delay is typical of matters addressed in the docket-heavy Ninth Circuit. The Court

4

concludes that there is little prospect that certification of this issue would result in an

5

appellate decision in time to aide in the termination of this litigation. This is true

6

particularly in light of the fact that Defendants hope to pursue this issue to the Supreme

7

Court, a process that would take even longer.

8

E.

9
10
11
12

Cisson Motion.

Plaintiffs seek leave to file a motion to preclude Defendants from presenting FDArelated evidence at trial.

Doc. 9245 at 12.

Plaintiffs may file the motion by

January 3, 3018. Defendants shall respond by January 17, 2018, and Plaintiffs shall
reply by January 26, 2018. The motion and response may be 10 pages long, the reply 5

13
14
15
16
17
18
19
20
21

pages.
F.

Next Case Management Conference.

The Court will hold another case management conference after the motions
hearing on January 19, 2018 at 1:00 p.m.. The parties shall file a joint status report five
days prior to the conference.
IT IS ORDERED that Defendants’ motion to certify the Court’s preemption
order for interlocutory appeal under 28 U.S.C. § 1292(b) (Doc. 9244) is denied.
Dated this 21st day of December, 2017.

22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 9775 Filed 01/23/18 Page 1 of 2

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 30

10
11
12

The Court held a fourteenth case management conference on January 19, 2018.

13

The conference occurred after oral argument on various expert motions and addressed

14

ongoing matters identified in the parties’ joint report. Doc. 9645.

15

A.

Motion Hearings.

16

The Court heard oral argument on motions relating to experts Muehrcke, Hurst,

17

Eisenberg, and Betensky. The parties and the Court agreed that oral argument is not

18

needed on motions related to experts McMeeking, Morris, Grassi, Garcia/Streiff, criminal

19

law standards, and Ritchie. The Court will rule on these motions during the month of

20

February. The Court will also rule on the motion in limine recently filed by Plaintiffs on

21

the use of FDA-related evidence at trial.

22

B.

23

Plaintiffs may use up to five pages for a motion in limine on the issue of non-

24

Other Matters.

parties at fault. Defendants may file a five-page response.

25

Defendants may file a motion in limine of up to ten pages on when evidence

26

regarding the Recovery filter may be introduced. Plaintiffs may file a ten-page response,

27

and Defendants may file a five-page reply, if needed.

28

Case 2:15-md-02641-DGC Document 9775 Filed 01/23/18 Page 2 of 2

1

The parties will confer about bifurcating the Booker trial under Georgia law. If

2

such bifurcation occurs, evidence regarding Defendants’ net worth, as possibly relevant

3

to the issue of punitive damages, will be postponed until after the jury rules on whether

4

punitive damages should be awarded. If the punitive damages phase is needed, the

5

parties agreed that it will be short and will occur immediately after the jury’s general

6

verdict. The Court reminded the parties that any time devoted to this punitive damages

7

portion of the trial must be counted against the hours allotted to each side in Case

8

Management No. 29.

9

Plaintiffs requested permission to conduct limited punitive damages discovery.

10

The Court concludes that the parties should confer to see if they can agree on an

11

exchange of information, in admissible form, that will eliminate the need for additional

12

discovery.

13

deposition under Rule 30(b)(6) for up to two hours. The deposition will be completed

14

before the final pretrial conference on March 2, 2018.

15
16

If the parties are unable to reach agreement, Plaintiffs may take one

The final pretrial conference will begin at 10:00 a.m. on March 2, 2018. The
Court will reserve the balance of the day to address any and all pretrial matters.

17

The parties asked that the Court rule on the Jones summary judgment motion as

18

soon as possible, but agreed that the expert motions and the motions in limine to be filed

19

on January 26, 2018, take priority. The Court will use its best effort to rule on the Jones

20

motion before the end of February.

21

The parties and the Court did not set another status conference. If issues arise that

22

require the Court’s attention, the parties should place a joint telephone call to the Court so

23

that such a conference can be scheduled. The next scheduled hearing in this case will be

24

the final pretrial conference.

25

Dated this 23rd day of January, 2018.

26
27
28

-2-

Case 2:15-md-02641-DGC Document 10323 Filed 03/02/18 Page 1 of 4

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 31

10
11
12
13
14
15

The Court held a final pretrial conference on March 2, 2018. This order will
reflect matters addressed at the conference.
1.

The parties’ proposed final pretrial order (Doc. 10255) was approved by the

16

Court as the final pretrial order in this case. The order shall govern the presentation of

17

evidence and other trial issues, and may be modified only to prevent manifest injustice.

18

Fed. R. Civ. P. 16(e).

19

2.

The parties did not object to any of the Court’s decisions on excusing jurors

20

for hardship.

21

discussed during the conference will be excused.

22

3.

Jurors identified in the Court’s previous order and additional jurors

The Court granted challenges for cause to a number of jurors based on

23

questionnaire answers. Those jurors were identified on the record and in an order filed

24

after the conference.

25
26
27
28

4.

The Court concluded that 60 jurors should be called for trial on

March 14, 2018. This number will ensure enough qualified jurors to try to the case.

Case 2:15-md-02641-DGC Document 10323 Filed 03/02/18 Page 2 of 4

1

5.

The parties shall prepare a witness list to be handed to jurors on the

2

morning of trial. The list should be sent to chambers in Word format on or before

3

March 7, 2018.

4

6.

The parties had no objections to the proposed preliminary instructions

5

distributed at the start of the conference. The parties may propose additional voir dire

6

questions by March 7, 2018.

7

7.

Following the conference, the Court reporter conferred with the parties

8

about transcription of the trial. The parties requested that the reporter transcribe video

9

deposition evidence presented during the trial. The reporter has found such transcription

10

very difficult in the past, due to the sometimes poor quality of the video and the pace of

11

questioning.

12

testimony. To create an accurate record of what was shown to the jury, the parties shall

13

jointly prepare a document that recites the pages and line numbers of all deposition

14

testimony played to the jury and shall file it in the docket following the trial. The parties

15

need not do so for deposition testimony read to the jury – the reporter will record such

16

testimony.

17
18
19
20
21

8.

The Court will not require the reporter to transcribe video deposition

Each side shall, 48 hours in advance, identify the live witnesses it intends to

present.
9.

The parties shall provide the Court clerk with impeachment exhibits 24

hours in advance of their potential use.
10.

Trial will occur on March 14-16, 20-23, and 26-30, 2018. This schedule,

22

which adds March 26 as a trial day, will permit the jury to receive the case for

23

deliberation by mid-day on March 29, 2018.

24
25
26

11.

The Court entered a number of legal rulings during the conference, and

provides others now:
a.

For reasons stated in more detail on the record, the Court will not

27

exclude evidence and argument by Defendants that the FDA took no enforcement action

28

with respect to the G2 filter, or evidence regarding the information Defendants provided

-2-

Case 2:15-md-02641-DGC Document 10323 Filed 03/02/18 Page 3 of 4

1

to the FDA in connection with the 510(k) process. The Court concludes that evidence

2

regarding a lack of FDA action is relevant to the negligent design and punitive damages

3

claims. See Browning v. Paccar, 448 S.E.2d 260, 263 (Ga. 1994) (“The fact that none of

4

such vehicles had been subjected to recall and Paccar had never been subjected to

5

regulatory action with respect to the claimed defect despite the thousands of identical

6

vehicles in use, tends to negate the allegation that the configuration was a dangerous

7

design.”). The Court has previously concluded that Defendants’ compliance with the

8

510(k) process is also relevant. Doc. 9881. The Court also finds that Plaintiffs have

9

ample evidence to contest Defendants’ assertions that they were fully transparent with the

10

FDA. The Court cannot conclude that the FDA’s lack of enforcement was intended by

11

the FDA as an assertion, making it subject to the hearsay rules. Plaintiffs can object at

12

trial to specific evidence they consider inadmissible.

13

b.

By March 6, 2018, the parties shall file two-page memoranda on

14

why the testimony of withdrawn defense experts is not admissible under Fed. R. Civ. P.

15

32(a)(4) and Fed. R. Evid. 804(b)(1).

16

c.

The Court will permit Plaintiffs to present evidence from

17

Defendants’ sales and marketing witnesses. The Court concludes that evidence of what

18

Defendants’ sales personnel were not told or were not instructed to convey is relevant to

19

the claim of failure to warn.

20

d.

The parties shall confer on the counter-designations that should be

21

presented when deposition testimony is played for the jury. Only counter-designations

22

needed to prevent a misleading presentation should to included. The parties will also

23

confer about the scheduling of live witnesses. Generally, the Court would like to require

24

witnesses to attend trial only once, but this rule may give way if the additional

25

questioning of a witness would seriously interrupt the opponents’ case.

26

e.

Because he was not disclosed as a witness during discovery, the

27

Court held that Dr. Kandarpa may not be called by Plaintiffs as a witness at trial. Fed. R.

28

Civ. P. 37(e).

-3-

Case 2:15-md-02641-DGC Document 10323 Filed 03/02/18 Page 4 of 4

1
2

f.

Dr. Kinney may be called as a fact witness, but not regarding his

work for Bard. Doc. 9868.

3

j.

The Court heard argument regarding Defendants’ assertion that

4

evidence of cephalad migration by the Recovery filter should not be admitted. The Court

5

concludes that such evidence will be necessary for the jury to understand the issues that

6

prompted creation and design of the G2, information that is relevant to the design defect

7

claim.

8

assertion that the FDA’s 510(k) clearance of the G2 amounted to a determination that the

9

G2 was as safe and efficient as the Recovery. Plaintiffs should be permitted to argue that

10

the Recovery was not safe and efficient, and that the FDA’s clearance of the G2 based on

11

the Recovery cannot be viewed as a reliable determination of safety or efficiency. The

12

Court is concerned, however, that too heavy an emphasis on deaths caused by cephalad

13

migration of the Recovery filter – a kind of migration which did not occur in Ms.

14

Booker’s case – would result in unfair prejudice that substantially outweighs the

15

probative value of the cephalad migration evidence.

16

Plaintiffs from introducing evidence of cephalad migration or that deaths occurred as a

17

result, but Defendants may object if they believe Plaintiffs are overemphasizing the

18

cephalad migration deaths.

19

The Court also finds such evidence relevant in responding to Defendants’

Dated this 2nd day of March, 2018.

20
21
22
23
24
25
26
27
28

-4-

The Court will not preclude

Case 2:15-md-02641-DGC Document 11011 Filed 05/07/18 Page 1 of 5

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability
Litigation,

10

___________________________________

11

Doris Jones, an individual,

12

No. MDL 15-02641-PHX-DGC

No. CV-16-00782-PHX-DGC

Plaintiff,

13

v.

14

C. R. Bard, Inc., a New Jersey corporation;
and Bard Peripheral Vascular, Inc., an
Arizona corporation,

15
16

CASE MANAGEMENT
ORDER NO. 32

Defendants.

17
18
19
20
21

The Court held a final pretrial conference on May 4, 2018.

Doc. 10993.

In addition to the transcript of the hearing, this order will capture rulings that were made.
1.

All of the jurors previously identified in Doc. 10844 will be excused for

22

hardship. By separate order, the Court will identify additional jurors that will be excused

23

for hardship.

24

2.

The Court heard challenges for cause and granted the challenges with

25

respect to eight jurors. They were identified on the record and will be included in a

26

separate order.

27

3.

28

The Court and the parties decided that 60 potential jurors will be called to

court on May 15, 2018.

Case 2:15-md-02641-DGC Document 11011 Filed 05/07/18 Page 2 of 5

1
2
3
4
5

4.

The Court will not give Plaintiff’s proposed voir dire questions regarding

punitive damages. Doc. 10933.
5.

On or before May 11, 2018, the parties shall provide the Court with a list of

witnesses to be shared with the prospective jurors before jury selection.
6.

The Court confirmed that Plaintiff has been allotted 28 hours of trial time

6

and Defendants have been allotted 27 hours. The Court will hold the parties to this time.

7

See Doc. 10922.

8

7.

9
10
11

The Court instructed the parties to resubmit their proposed changes to the

final jury instructions. These changes shall be submitted by May 8, 2018.
8.

The Court addressed several matters from the parties’ proposed final

pretrial order:

12

a.

Plaintiff has withdrawn her claim of fraudulent concealment.

13

b.

The defense of failure to mitigate damages will be deemed a part of

14

the final pretrial order. Plaintiff may argue during trial that the defense should not be

15

submitted to the jury due to lack of evidence.

16

c.

The Court will not address the availability of punitive damages in

17

light of O.C.G.A. § 51-12-5.1(e)(1). Defendants may raise that issue in the future if they

18

seek a ruling from the Court.

19

d.

20

Defendants may file a motion to seal trial exhibits 21 days after the

last trial transcript is placed on the docket.

21

e.

Plaintiff may present testimony from experts formerly retained by

22

Defendants, but withdrawn by Defendants, in accordance with the requirements in

23

Doc. 10382.

24

f.

Defendants object to the use of Medhi Syed’s deposition because,

25

although Plaintiffs provided Defendants with all designations for Mr. Syed during the

26

Booker trial, she did not provide them in this case. Doc. 10932 at 24. The Court will not

27

preclude Plaintiff from using Mr. Syed’s deposition if a punitive damages phase is

28

necessary. The Court will rule on objections in the deposition designations.

-2-

Case 2:15-md-02641-DGC Document 11011 Filed 05/07/18 Page 3 of 5

1

g.

The proposed final pretrial order (Doc. 10932), as revised in this

2

order, is approved and adopted as the final pretrial order pursuant to Rule 16(e).

3

Modifications to the order will be permitted only to prevent manifest injustice.

4

9.

Defendants object to Plaintiff calling Dr. Kandarpa to testify at trial

5

because Plaintiff did not identify him as a witness until well after the close of discovery

6

and shortly before the Booker trial. Doc. 10932 at 3. The Court excluded Dr. Kandarpa

7

from the Booker trial under Rule 37(c) on the ground that he was not identified in any

8

Rule 26(a) disclosure, and this failure was neither substantially justified nor harmless.

9

Doc. 10323 at 3. The parties clarified at the final pretrial conference for the Jones case

10

that Rule 26(a) disclosures have not been exchanged in this MDL, but they agree that

11

Dr. Kandarpa was not disclosed in response to Defendants’ interrogatory seeking the

12

identity of witnesses and the subject matter of their testimony. See Fed. R. Civ. P. 33(b).

13

Defendants argue that the recent identification of Dr. Kandarpa is much too late, and that

14

they would have deposed him had he been timely disclosed. Id. The Court agrees.

15

Rule 33(b) requires that interrogatories be answered within 30 days of service.

16

Plaintiff identified Dr. Kandarpa as a witness more than a year after Defendants served

17

their interrogatories and well after discovery closed in 2017.

18

justification for the delay, other than noting that Defendants have known about

19

Dr. Kandarpa for years.

20

substitute for knowing that one’s opponent intends to call him at trial.

Plaintiff provides no

But mere knowledge that a potential witness exists is no

21

Plaintiff asserts that any delay is harmless because, even if she had timely

22

identified Dr. Kandarpa as a witness, there was little time left in the discovery period for

23

Defendants to depose him. But Defendants have made clear that they would have sought

24

to schedule his deposition before the close of discovery and would have sought an

25

extension from the Court if necessary. The Court cannot conclude that the delay in

26

identifying Dr. Kandarpa as a witness is harmless.

27
28

Where a party fails to fully answer an interrogatory, the sanctions set forth in
Rule 37(b) may be imposed.

Fed. R. Civ. P. 37(d)(3).

-3-

Those sanctions include

Case 2:15-md-02641-DGC Document 11011 Filed 05/07/18 Page 4 of 5

1

prohibiting the party from introducing the non-disclosed matter into evidence. Fed. R.

2

Civ. P. 37(b)(2)(A)(ii).

3

Kandarpa as a witness at trial is an appropriate sanction.

The Court finds that prohibiting Plaintiff from calling Dr.

4

Even if the Court excludes Dr. Kandarpa as a substantive witness, Plaintiff asks

5

that she be permitted to call him solely for the purpose of authenticating certain

6

documents and admitting them in evidence.

7

documents Dr. Kandarpa either authored or reviewed at the time of their creation, and

8

concludes that even this limited testimony would not be harmless because Defendants

9

would not have had an opportunity to depose him about the documents. The Court will

10
11

The Court understands these to be

not permit this limited testimony.
10.

Plaintiff objects to Defendants presenting evidence that the FDA took no

12

enforcement action against them and never suggested a recall of their IVC filters.

13

Doc. 10932 at 20. The Court ruled in the Booker trial that this evidence was admissible,

14

but Plaintiff again contends that the evidence lacks probative value and is misleading and

15

highly prejudicial. Id. The Court does not agree.

16

Plaintiff will make many FDA-related arguments.

She will assert that the

17

Recovery filter was adulterated and misbranded in violation of federal regulations, that

18

the device should have been recalled, and that it was not substantially equivalent to its

19

predicate device. She will seek to introduce an FDA warning letter and argue that

20

Defendants’ mishandling of complaints, including for the Eclipse filter, violated federal

21

regulations and reflects a conscious indifference to patient safety. See Docs. 10520 at 3,

22

10708 at 6. She also will assert that Defendants misled the FDA and failed to disclose

23

relevant information.

24

Defendants should be permitted to present evidence regarding their communications with

25

the FDA and its lack of enforcement action with respect to their filters.

To counter this evidence and argument regarding the FDA,

26

Moreover, the lack of action by the FDA is relevant to the negligent design claim.

27

Doc. 10323 at 3 (citing Browning v. Paccar, 448 S.E.2d 260, 263 (Ga. 1994)). Although

28

most product recalls are voluntary, Plaintiffs do not dispute that the FDA has authority to

-4-

Case 2:15-md-02641-DGC Document 11011 Filed 05/07/18 Page 5 of 5

1

initiate a recall and other enforcement actions against a manufacturer. The fact that the

2

FDA did not do so in this case has some probative value. See Browning, 448 S.E.2d

3

at 263.

4

Plaintiff contends that Defendants should not be permitted to imply that the FDA

5

investigated and reached favorable conclusions regarding the filters. The Court agrees

6

that the any suggestion about the state of mind of the FDA or its officials would be

7

improper. If Plaintiff believes that Defendants are crossing this line, she may object. But

8

the fact that the FDA took no enforcement action is relevant to her claims and theory of

9

the case.

10

11.

The Court heard argument on whether exclusion of evidence of deaths

11

caused by cephalad migration of Recovery filters will seriously impair Plaintiff’s case.

12

The Court will address this issue in a separate order.

13

Dated this 7th day of May, 2018.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 11320 Filed 06/01/18 Page 1 of 4

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

IN RE: Bard IVC Filters Products Liability

No. MDL 15-02641-PHX DGC

Litigation,

CASE MANAGEMENT ORDER
NO. 33

10
11
12

Following the close of trial in the Jones case, the Court conferred with the parties

13

regarding scheduling matters. On the basis of the conference, the Court enters the

14

following order:

15

1.

16

The parties agreed on the Mulkey case as the bellwether trial for September 2018.

17

2.

18

Next Bellwether: Mulkey.

Jury Questionnaire and Jury Selection for Mulkey Trial.
a.

By July 5, 2018, the parties shall provide the Court with proposed

19

changes to the questionnaire used in the Jones bellwether trial. The Court will consider

20

these proposals in finalizing the questionnaire for the Mulkey trial.

21

b.

The Clerk shall mail the questionnaire to 200 jurors no later than

22

July 13, 2018. The questionnaire will instruct the prospective jurors to return it to the

23

Court no later than August 10, 2018.

24

c.

A thumb drive will be prepared for counsel (one for each side)

25

containing copies of the questionnaires and will be available for pickup at the jury office

26

on August 17, 2018. The thumb drive and any paper copies made by counsel must be

27

returned to the Court by counsel on the day of jury selection.

28

Case 2:15-md-02641-DGC Document 11320 Filed 06/01/18 Page 2 of 4

1

d.

On August 24, 2018, the Court will provide the parties with a list of

2

prospective jurors the Court proposes to excuse for hardship on the basis of their

3

responses to the first question in the questionnaire.

4

e.

The Court will hold a final pretrial conference in the Mulkey case on

5

August 30, 2018 at 10:00 a.m.

6

permitted to challenge the Court’s excusal of any of the listed jurors for hardship. If

7

counsel do not object to the Court’s proposed excusal of a particular juror for hardship,

8

that juror will be excused from further involvement in this case. After hearing counsel’s

9

objections to hardship excusals, the Court will determine which of the challenged jurors

10

should be excused for hardship and which should appear for voir dire. In addition,

11

counsel shall be prepared to make challenges for cause to jurors on the basis of

12

information contained in their questionnaires. These challenges should be limited to

13

jurors who clearly could not serve as a fair juror on the basis of their questionnaire

14

answers. The Court will rule on these challenges at the final pretrial conference. All

15

prospective jurors who returned questionnaires and who have not been excused for

16

hardship or successfully challenged for cause will be candidates for voir dire.

17

f.

At the final pretrial conference, counsel will be

On September 18, 2018, at 9:00 a.m., 50 prospective jurors will be

18

called to Court to appear for voir dire. The Court will permit counsel to ask follow-up

19

questions of individual jurors based on information contained in the juror questionnaires.

20

Counsel should not venture into new subjects – they should limit their follow-up

21

questions to the items covered in the questionnaire. Following voir dire, the Court will

22

hear and rule on challenges for cause.

23
24

g.

The Court will seat 9 jurors. Each side will have 3 pre-emptory

h.

The Court anticipates that opening statements and evidence will

strikes.

25
26

begin on the afternoon of September 18, 2018.

27

///

28

///

-2-

Case 2:15-md-02641-DGC Document 11320 Filed 06/01/18 Page 3 of 4

1

3.

2

By June 15, 2018, the parties should simultaneously file six-page memoranda

3

addressing the following issues:

4
5

a.

The Plaintiff for the fourth and fifth bellwether trials (Hyde and

b.

The identity of the Plaintiff for the sixth bellwether trial (Peterson,

Kruse);

6
7

Briefing on Specific Issues.

Tinlin, King, Mixson, or DeWitt);

8

c.

9

with them; and

10

d.

11

The presence of SNF cases in this MDL and what should happen

The appropriate time for remand of the “mature” cases discussed in

previous Case Management Orders.

12

4.

13

The Court will rule on the pending Mulkey motion for summary judgment as soon

14

Mulkey Motion for Summary Judgment.

as possible.

15

5.

16

Motions in limine, limited to three pages each, shall be filed by July 27, 2018.

17

Responses to motions in limine, limited to three pages each, shall be filed by

18

August 10, 2018. No replies shall be filed.

Mulkey Motions in Limine.

19

6.

20

The parties shall provide deposition designations by August 15, 2018.

21

7.

Deposition Designations.

The proposed final pretrial order shall be submitted by August 17, 2018.

22

The Court will enter a separate order governing the materials that should be submitted

23

with the final pretrial order.

24

8.

25

Trial will be held on September 18-21 and 24-28, and October 1-5. Plaintiff will

26

be allotted 33 hours of trial time and Defendants will be allotted 30 hours of trial time.

27

These hour allocations are greater than in previous trials, and are undertaken to address

28

Plaintiff’s concern that a more complete case could be presented with additional time.

Trial days.

-3-

Case 2:15-md-02641-DGC Document 11320 Filed 06/01/18 Page 4 of 4

1

This represents five more hours of trial time for Plaintiff than allotted in the Jones trial

2

and six more hours than allotted in the Booker trial. The Court will consider whether to

3

shorten the allotted time for the fourth bellwether trial. Plaintiff’s counsel were more

4

efficient in the Jones trial than the Booker trial, but the Court concludes that greater

5

efficiency could still be achieved without a loss of persuasive effect.

6

nonetheless believes that one purpose of the bellwether trials is to give the parties a fair

7

sense of how cases will be decided in various trials, and will allot this additional time in

8

order to provide information on the result of a trial where more time is allowed. This

9

schedule should allow the case to get to the jury by the morning of October 4, 2018.

10

9.

The Court

The Court previously ruled that Plaintiffs could not use Dr. Kandarpa as a

11

witness because of their failure to disclose him during the discovery period. The Court

12

concluded that this failure was not harmless because Defendants would have deposed Dr.

13

Kendarpa had he been properly identified. Doc. 11011 at 3. Because there are more than

14

three months between now and the start of the Mulkey trial, and a deposition of Dr.

15

Kendarpa has already been scheduled in similar state cases for the month of June, the

16

Court concludes that the harm to Defendants can be alleviated through the deposition. As

17

a result, the Court will permit Plaintiff Mulkey to use Dr. Kandarpa as a witness at trial.

18

10.

19

The Court previously rejected Plaintiff’s Cisson argument. Plaintiff’s counsel

20

have asked the Court to reconsider this ruling in light of the state law that will apply to

21

future bellwether cases. Plaintiff may file a five-page memorandum on this subject by

22

June 15, 2018, and Defendants may file a five-page response by June 29, 2018. No

23

reply shall be filed. The Court will review the original Cisson briefing, as well as these

24

two additional memoranda, and issue a decision during the month of July.

25

Cisson Ruling.

Dated this 1st day of June, 2018.

26
27
28

-4-

Case 2:15-md-02641-DGC Document 11659 Filed 06/28/18 Page 1 of 5

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. 34

12
13
14

Following the close of the second bellwether trial, the Court conferred with the

15

parties regarding scheduling matters. The parties agreed on the Mulkey case as the next

16

bellwether trial for September 2018. The Court directed the parties to file memoranda

17

addressing other bellwether trials and cases in this MDL. Doc. 11320. Having reviewed

18

the memoranda, the Court enters the following order:

19

I.

Next Three Bellwether Trials: Kruse, Hyde, and Mulkey.

20

During a recent telephonic conference, counsel for Ms. Mulkey expressed concern

21

about her availability for trial in September due to certain health issues. Doc. 11549.

22

Counsel thereafter provided an update on her condition which leaves her availability for

23

trial uncertain. Doc. 11639. Defendants have no objection to a different case for the next

24

bellwether, and propose Kruse in lieu of Mulkey. Doc. 11640. Plaintiffs propose Hyde

25

as the next bellwether. Doc. 11553.

26

Having considered the parties’ positions, the Court concludes that the order of the

27

next three bellwether trials should be as follows: Kruse, Hyde, and Mulkey. Trial in the

28

Kruse bellwether will begin in September 2018 as set forth below. Trial in the Hyde

Case 2:15-md-02641-DGC Document 11659 Filed 06/28/18 Page 2 of 5

1

bellwether will be held on November 5-9, 12-16, and 19-20. Trial in the Mulkey

2

bellwether will be held in February 2019. The Court will set the specific trial dates by

3

separate order.

4

II.

Kruse Trial.

5

The dates and deadlines set forth in Case Management Order No. 33 for the

6

Mulkey trial will apply to the Kruse bellwether as follows (see Doc. 11320 for further

7

details):

8
9

A.

Jury Questionnaire and Jury Selection for Kruse Trial.
1.

By July 5, 2018, the parties shall provide the Court with proposed

10

changes to the questionnaire used in the Jones bellwether trial. The Court will consider

11

these proposals in finalizing the questionnaire for the Kruse trial.

12

2.

The Clerk shall mail the questionnaire to 200 jurors no later than

13

July 13, 2018. The questionnaire will instruct the prospective jurors to return it to the

14

Court no later than August 10, 2018.

15

3.

A thumb drive will be prepared for counsel (one for each side)

16

containing copies of the questionnaires and will be available for pickup at the jury office

17

on August 17, 2018. The thumb drive and any paper copies made by counsel must be

18

returned to the Court by counsel on the day of jury selection.

19

4.

On August 24, 2018, the Court will provide the parties with a list of

20

prospective jurors the Court proposes to excuse for hardship on the basis of their

21

responses to the first question in the questionnaire.

22

5.

The Court will hold a final pretrial conference in the Kruse case on

23

August 30, 2018 at 10:00 a.m. and will address with the parties juror excusals for

24

hardship and challenges for cause. See Doc. 11320 at 2, ¶ 2(e).

25

6.

On September 18, 2018, at 9:00 a.m., 50 prospective jurors will be

26

called to Court to appear for voir dire. Following voir dire, the Court will hear and rule

27

on challenges for cause. The Court will seat 9 jurors. Each side will have 3 pre-emptory

28

strikes. See Doc. 11320 at 2, ¶ 2(f).

-2-

Case 2:15-md-02641-DGC Document 11659 Filed 06/28/18 Page 3 of 5

1

B.

2

The Court will rule on the Kruse summary judgment motion as soon as possible.

3

C.

4

Motions in limine, limited to three pages each, shall be filed by July 27, 2018.

5

Responses to motions in limine, limited to three pages each, shall be filed by

6

August 10, 2018. No replies shall be filed.

Kruse Motion for Summary Judgment.

Motions in Limine.

7

Defendants may re-urge their motion in limine regarding Recovery death evidence

8

(Doc. 9862) pursuant to the schedule set forth above. Memoranda on this issue may be

9

up to 5 pages long. The parties shall not repeat arguments previously made. The issue

10

was fully briefed for the Booker trial, and the Court has addressed Recovery death

11

evidence in several orders. Docs. 10258, 10819, 10920, 11041.1

12

D.

13

The parties shall provide deposition designations by August 15, 2018.

14

E.

15

The proposed final pretrial order for the Kruse bellwether shall be submitted by

16

August 17, 2018. The Court will enter a separate order governing the materials that

17

should be submitted with the proposed final pretrial order.

Deposition Designations.

Proposed Final Pretrial Order.

18

F.

19

Trial in the Kruse bellwether will be held on September 18-21 and 24-28, and

20

October 1-5. Plaintiff will be allotted 33 hours of trial time and Defendants will be

21

allotted 30 hours of trial time. This schedule should allow the case to get to the jury by

22

the morning of October 4, 2018.

Trial days.

23

G.

24

Kruse may use Dr. Kandarpa as a witness at trial. See Doc. 11320 at 4, ¶ 9.

Dr. Kandarpa.

25
26
27
28

1

The Court stated that it would propose a new schedule for Plaintiffs’ Cisson
motion if the Mulkey case were to be replaced. Doc. 11549. Plaintiffs have made clear,
however, that they do not intend to re-urge the motion regardless of which case is chosen
for the third bellwether. Doc. 11639 at 3.

-3-

Case 2:15-md-02641-DGC Document 11659 Filed 06/28/18 Page 4 of 5

1

III.

The Sixth Bellwether: Tinlin.

2

Defendants propose the King case for the sixth bellwether, and Plaintiffs propose

3

Tinlin. Docs. 11550, 11553. The five cases already selected for bellwether trials consist

4

of three G2 cases (Booker, Kruse, and Hyde) and two Eclipse cases (Jones and Mulkey).

5

The Court agrees with Plaintiffs that it is important to have a Recovery case as one of the

6

six bellwether trials. Doc. 11553 at 2-3. The Tinlin case is the only potential bellwether

7

that involves a Recovery filter.

8

candidate for a bellwether, but expressed concern that she may not be able to endure the

9

rigors of an out-of-state trial due to her illness. Doc. 5770 at 1-2. Plaintiffs, however,

10

have confirmed that Tinlin is willing and able to travel to Arizona for trial. Doc. 11553

11

at 3.

The Court previously found Tinlin to be a strong

12

For reasons stated on the record at the ninth case management conference, the

13

Court does not view King as a helpful bellwether case. Doc. 5770 at 2. Defendants do

14

not address those concerns in their memorandum. Moreover, King involves a G2 like

15

three of the other bellwether cases. Defendants assert that the King case is representative

16

of the MDL inventory as a whole because it involves perforation and an unsuccessful

17

retrieval attempt. Doc. 1550 at 2. But even if this were true, the Court finds that it is

18

more important for the sixth bellwether to be a Recovery case.2

19

Trial in the Tinlin bellwether will be held in May 2019. The Court will determine

20

the specific trial dates after the Kruse trial.

21

IV.

Disposition of the SNF Cases.

22

The nearly 100 Simon Nitinol Filter (“SNF”) cases should not be part of this

23

MDL. The SNF is not part of the master complaint, which is limited to Bard retrievable

24

filters. Doc. 364. The SNF cases have been filed by more than 20 different law firms.

25

Defendants do not oppose the request by Plaintiffs’ counsel to have 30 days to obtain

26
27
28

2

Given the selection of Tinlin for the sixth bellwether, the Court need not consider
Plaintiffs’ alternative choice, DeWitt. Neither side proposes Nelson, Peterson, or Mixson
as the final bellwether case.

-4-

Case 2:15-md-02641-DGC Document 11659 Filed 06/28/18 Page 5 of 5

1

responses from the firms representing the SNF plaintiffs as to what action should be

2

taken in those cases. Doc. 11550 at 4. Plaintiffs shall file a notice regarding the status of

3

the SNF cases by July 16, 2018.

4

V.

Remand of the “Mature” Cases.

5

More than two years ago, the parties estimated that the 10 mature cases would be

6

“ripe for remand in 4-6 months.” Doc. 914 at 2. Since that time, common fact discovery

7

and expert disclosures in this MDL have been completed, and the Court has ruled on

8

Daubert motions and Defendants’ summary judgment motion based on preemption. The

9

Court concludes that it is time to remand the mature cases to their home districts. The

10
11

Court will look into the proper procedure for remand and invite briefing if necessary.
Dated this 28th day of June, 2018.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 11871 Filed 07/13/18 Page 1 of 4

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,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 35

11
12
13
14

As set forth in Case Management Order No. 34, the bellwether cases are scheduled

15

for trial as follows: Kruse (September 2018), Hyde (November 2018), Mulkey (February

16

2019), and Tinlin (May 2019). Doc. 11659 at 1-4. The Court has determined that it must

17

grant summary judgment in favor of Defendants on the claims asserted by Plaintiff

18

Kruse. See Doc. 11839. The Court held a conference call with the parties today to

19

discuss scheduling issues and whether the Hyde case could be moved to the September

20

bellwether slot in lieu of the Kruse case. On the basis of the conference, the Court enters

21

the following order:

22

I.

September 2018 Bellwether: Hyde.

23

The parties agreed that in lieu of Kruse, and with certain scheduling modifications,

24

the Hyde case can be tried in September. The dates and deadlines set forth in Case

25

Management Order No. 34 (Doc. 11659) are modified in part as follows for the Hyde

26

trial:

27
28

A.

Jury Questionnaire and Selection.
1.

By July 18, 2018, the parties shall provide the Court with proposed

Case 2:15-md-02641-DGC Document 11871 Filed 07/13/18 Page 2 of 4

1

changes to the jury questionnaire used in the Jones trial. The Court will consider these

2

proposals in finalizing the questionnaire for the Hyde trial.

3

2.

The Clerk shall mail the questionnaire to 200 jurors no later than

4

July 20, 2018. The questionnaire will instruct the prospective jurors to return it to the

5

Court no later than August 17, 2018.

6

3.

A thumb drive will be prepared for counsel (one for each side)

7

containing copies of the questionnaires and will be available for pickup at the jury office

8

on August 24, 2018. The thumb drive and any paper copies made by counsel must be

9

returned to the Court by counsel on the day of jury selection.

10

4.

On August 30, 2018, the Court will provide the parties with a list of

11

prospective jurors the Court proposes to excuse for hardship on the basis of their

12

responses to the first question in the questionnaire.

13

5.

The Court will hold a final pretrial conference in the Hyde case on

14

September 6, 2018 at 10:00 a.m. and will address with the parties juror excusals for

15

hardship and challenges for cause. See Doc. 11320 at 2, ¶ 2(e).

16

6.

On September 18, 2018, at 9:00 a.m., 50 prospective jurors will be

17

called to Court to appear for voir dire. Following voir dire, the Court will hear and rule

18

on challenges for cause. The Court will seat 9 jurors. Each side will have 3 pre-emptory

19

strikes. See Doc. 11320 at 2, ¶ 2(f).

20

B.

21

The Court will rule on the choice-of-law issue raised in the Hyde summary

22

judgment motion (Doc. 7359) by July 25, 2017. The Court will endeavor to rule on the

23

remaining summary judgment issues in Hyde as soon as possible.

Motion for Summary Judgment.

24

C.

25

Motions in limine, limited to three pages each, shall be filed by August 10, 2018.

26

Responses to motions in limine, limited to three pages each, shall be filed by

27

August 24, 2018. No replies shall be filed.

28

Motions in Limine.

Defendants may, if they so choose, re-urge their motion in limine regarding

-2-

Case 2:15-md-02641-DGC Document 11871 Filed 07/13/18 Page 3 of 4

1

Recovery death evidence (Doc. 9862) pursuant to the schedule set forth above.

2

Memoranda on this issue may be up to 5 pages long. The parties shall not repeat

3

arguments previously made.

4

Court has addressed Recovery death evidence in several orders. Docs. 10258, 10819,

5

10920, 11041.1

6

D.

7

The parties shall provide deposition designations by August 22, 2018.

8

E.

9

The proposed final pretrial order for the Hyde bellwether shall be submitted by

10

4:00 p.m. on August 24, 2018. The Court will enter a separate order governing the

11

materials that should be submitted with the proposed final pretrial order.

The issue was fully briefed for the Booker trial, and the

Deposition Designations.

Proposed Final Pretrial Order.

12

F.

13

The trial dates for the Hyde bellwether will remain the same as those set for

Trial Days.

14

Kruse:

15

33 hours of trial time and Defendants will be allotted 30 hours of trial time. This

16

schedule should allow the case to get to the jury by the morning of October 4, 2018. See

17

Docs. 11320 at 3-4, 11659 at 3.

September 18-21 and 24-28, and October 1-5.

Plaintiff will be allotted

18

G.

19

Hyde may use Dr. Kandarpa as a witness at trial. See Doc. 11320 at 4, ¶ 9.

20

II.

Dr. Kandarpa.

November 2018 Bellwether.

21

Trial in this bellwether slot will be held on November 5-9, 13-16, 19-20, and

22

26-28. The parties should note that these dates have been modified (see Doc. 11659 at 2)

23

to allow for 14 trial days and account for the federal holiday on November 12 (Veterans

24

Day). The Plaintiff for the fourth bellwether (Mulkey or Tinlin) will be determined after

25
26
27
28

1

The Court previously stated that it would propose a new schedule for Plaintiffs’
Cisson motion if a new case were selected for the September 2018 bellwether slot.
Doc. 11549. Plaintiffs have made clear, however, that they do not intend to re-urge the
motion regardless of which case is chosen for the third bellwether. Doc. 11639 at 3.

-3-

Case 2:15-md-02641-DGC Document 11871 Filed 07/13/18 Page 4 of 4

1

the parties file memoranda concerning Mulkey’s health condition and the feasibility of

2

Tinlin’s case being tried in November.

3

III.

4

February 2019 Bellwether.
Trial in this bellwether slot will be held on February 11-15, 19-22, 25-28, and

5

March 1, 2019.

6

IV.

7
8
9

May 2019 Bellwether.
The Court will determine whether a sixth bellwether trial should be held, and the

specific Plaintiff and dates for such bellwether, after the Hyde trial.
Dated this 13th day of July, 2018.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-

Case 2:15-md-02641-DGC Document 12061 Filed 08/02/18 Page 1 of 2

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. 36

12
13
14

The Court has reviewed the parties’ memoranda on Plaintiff Debra Mulkey’s

15

status and the possibility of trying the Tinlin case in November 2018. Docs. 11951,

16

11952. The memorandum on Ms. Mulkey makes clear that her case should not be

17

scheduled for trial in November. She continues to undergo medical testing attempting to

18

identify the cause of her concerning health issues, and scheduling her for the stress of a

19

three-week trial in November would be unwise. The Court will try Ms. Mulkey’s case in

20

2019.

21

The Court had fully intended to try a fourth bellwether trial in November, but the

22

Court’s grant of summary judgment in the Kruse case and the unavailability of

23

Ms. Mulkey for trial this year mean that the only remaining bellwether plaintiff is Debra

24

Tinlin.

25

required for the Tinlin trial have not been completed. Plaintiffs propose an aggressive

26

schedule to have the Tinlin case ready for trial in November, but the Court concludes that

27

the schedule is unrealistic. A year’s worth of medical records for Plaintiff Tinlin’s many

28

medical conditions will need to be collected, many treating physicians likely will need to

Unfortunately, much of the case-specific discovery and expert disclosures

Case 2:15-md-02641-DGC Document 12061 Filed 08/02/18 Page 2 of 2

1

be deposed, plaintiff-specific expert reports must be prepared and disclosed, expert

2

depositions must be completed, and Daubert and summary judgment motions must be

3

briefed and decided. For a trial to begin on November 5, 2018, the Court would need to

4

rule on the Daubert and summary judgment motions in early October, something that

5

would be very difficult in light of the Court’s administrative responsibilities that month

6

and the fact that the Hyde bellwether trial will not end until October 5.

7

The Court is reluctant to lose the November bellwether trial slot, but

8

circumstances make a Tinlin trial in November unreasonable. As a result, the Court will

9

plan to try the Tinlin and Mulkey cases in February and May of 2019. The Court will

10

decide the order of the trials, and the dates for the trial in May, after the Hyde trial.

11

The parties shall follow this schedule in preparing the Tinlin case for trial:

12

1.

13
14
15
16
17
18
19
20
21

Plaintiff shall provide an updated provider list and executed medical

authorizations to Defendants by August 10, 2018.
2.

The parties shall obtain updated medical records from known treaters and

newly identified treaters by September 28, 2018.
3.

The parties shall identify treating physicians and fact witnesses to be

deposed, and shall complete the depositions on a rolling basis, by October 5, 2018.
4.

Plaintiff’s case-specific expert disclosures shall be completed by

September 28, 2018.
5.

Defendants’ case-specific expert disclosures shall be completed by

October 26, 2018.

22

6.

Case-specific experts shall be deposed by November 16, 2018.

23

7.

Dispositive and Daubert motions shall be filed by December 7, 2018,

24
25

responses by December 28, 2018, and replies by January 11, 2019.
Dated this 2nd day of August, 2018.

26
27
28

-2-

Case 2:15-md-02641-DGC Document 12830 Filed 10/04/18 Page 1 of 3

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,

No. MDL 15-02641-PHX DGC
CASE MANAGEMENT ORDER
NO. 37

11
12
13
14
15

The Court held a final pretrial conference with the parties on September 6, 2018.
This Order will reflect matters discussed during the final pretrial conference.

16

A.

17

The Court will excuse for hardship the jurors listed in Docs. 12113 and 12375. In

18
19
20

Jury Selection.

addition, the Court will excuse jurors 19 and 179 for hardship.
After hearing arguments from the parties, the Court excused the following jurors
for cause: 9, 35, 40, 49, 61, 63, 66, 78, 80, 118, 146, 163, and 199.

21

The Court will call the 55 potential jurors listed below to appear for jury selection

22

on the morning of September 18, 2018. By noon on September 14, 2018, the parties shall

23

provide the Court with a list of witnesses to be provided to potential jurors on the

24

morning of September 18, 2018.

25
26
27
28

2
3
4
5
6
15
16
18

Case 2:15-md-02641-DGC Document 12830 Filed 10/04/18 Page 2 of 3

24

20
21
22
23
25
28
29
30
31
32
38
42
44
46
50
51
52
58
59
62
64
67
68
70
71
72
74
75
76
82
83
84
85
86
87
88
90
92
95
103
105
106
107
109
110
111
114

25

The Court provided counsel with proposed voir dire questions. Counsel should be

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

26

prepared to address those questions before the start of trial on September 18, 2018.

27
28

-2-

Case 2:15-md-02641-DGC Document 12830 Filed 10/04/18 Page 3 of 3

1

The Court provided counsel with proposed preliminary jury instructions. Counsel

2

should be prepared to address any objections to those instructions before the start of trial

3

on September 18, 2018.

4

B.

5

The Court took under advisement Defendants’ argument that the negligence per se

6

claim is preempted, Plaintiffs’ objection to the use of Dr. Asch’s previous trial testimony

7

during trial, and Defendants’ contention that the presumption in Wis. Stat. §

8

895.047(3)(B) should apply in this case. The Court has entered its Order (Doc. 12589)

9

on this issue.

10

Issues to be Resolved Before Trial.

The parties have provided the Court with a number of additional deposition

11

designations.

12

(Doc. 12590) on the designations by the parties.

The Court has reviewed the designations and entered its Order

13

C.

14

The Court approved the parties’ Final Pretrial Order (Doc. 12388) with a few

15

modifications stated on the record. The Final Pretrial Order as approved will govern the

16

trial in this case, and may be amended only upon the showing required by Federal Rule of

17

Civil Procedure 16(e).

Final Pretrial Order.

18

All other trial-related matters have been addressed in previous Orders of the Court.

19

Dated this 3rd day of October, 2018.

20
21
22
23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 1 of 6

1
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,

No. MDL 15-02641-PHX-DGC
CASE MANAGEMENT ORDER
NO. 38

11
12
13
14
15

Following the close of evidence in the Hyde case, the Court conferred with the

16

parties regarding scheduling matters. On the basis of the conference, the Court enters the

17

following order.

18

I.

Future Bellwether Trials.

19

The Court confirmed that it will hold two more bellwether trials in this MDL

20

proceeding – Plaintiffs Mulkey and Tinlin. The Court will not hold a sixth bellwether

21

trial. Because discovery in the Tinlin case is still being completed and Ms. Mulkey’s

22

health appears at this time to permit a trial, the Court will hold the Mulkey trial in

23

February and the Tinlin trial in May. In the meantime, the Tinlin discovery schedule set

24

forth in Doc. 12061, as modified by Doc. 12759, shall remain in place. The Court will

25

rule as promptly as possible on the motion for summary judgment in the Mulkey case. If

26

the Court grants summary judgment in Mulkey, the Tinlin trial will be held in February.

27

If Ms. Mulkey’s health worsens, the Court will hear from the parties on whether the

28

Tinlin trial should be moved to February, but this issue should be raised with the Court

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 2 of 6

1

during the week of November 12, 2018, in light of the jury questionnaire schedule set

2

forth below.

3

II.

4
5

February Bellwether Trial.
A.

Jury Questionnaire and Jury Selection.
1.

By November 26, 2018, the parties shall provide the Court with

6

proposed changes to the questionnaire used in the Hyde bellwether trial. The Court will

7

consider these proposals in finalizing the questionnaire for the February trial.

8
9
10
11

2.

The Clerk shall mail the questionnaire to 200 jurors no later than

November 30, 2018. The questionnaire will instruct the prospective jurors to return it to
the Court no later than January 4, 2019.
3.

A thumb drive will be prepared for counsel (one for each side)

12

containing copies of the questionnaires and will be available for pickup at the jury office

13

on January 11, 2019. The thumb drive and any paper copies made by counsel must be

14

returned to the Court by counsel on the day of jury selection.

15

4.

On January 18, 2019, the Court will provide the parties with a list

16

of prospective jurors the Court proposes to excuse for hardship on the basis of their

17

responses to the first question in the questionnaire.

18

5.

The Court will hold a final pretrial conference case on

19

January 28, 2019 at 10:00 a.m.

20

permitted to challenge the Court’s excusal of any of the listed jurors for hardship. If

21

counsel do not object to the Court’s proposed excusal of a particular juror for hardship,

22

that juror will be excused from further involvement in this case. After hearing counsel’s

23

objections to hardship excusals, the Court will determine which of the challenged jurors

24

should be excused for hardship and which should appear for voir dire. In addition,

25

counsel shall be prepared to make challenges for cause to jurors on the basis of

26

information contained in their questionnaires. These challenges should be limited to

27

jurors who clearly could not serve as a fair juror on the basis of their questionnaire

28

answers. The Court will rule on these challenges at the final pretrial conference. All

At the final pretrial conference, counsel will be

-2-

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 3 of 6

1

prospective jurors who returned questionnaires and who have not been excused for

2

hardship or successfully challenged for cause will be candidates for voir dire.

3

6.

On February 11, 2019, at 9:00 a.m., 50 prospective jurors will be

4

called to Court to appear for voir dire. The Court will permit counsel to ask follow-up

5

questions of individual jurors based on information contained in the juror questionnaires.

6

Counsel should not venture into new subjects – they should limit their follow-up

7

questions to the items covered in the questionnaire. Following voir dire, the Court will

8

hear and rule on challenges for cause.

9
10

7.

8.

The Court anticipates that opening statements and evidence trial will

strikes.

11
12

The Court will seat 9 jurors. Each side will have 3 pre-emptory

begin on the afternoon of February 11, 2019.

13

B.

14

Dispositive and Daubert motions in the Tinlin case shall be filed by

15

December 7, 2018, responses by December 21, 2018, and replies by December 28,

16

2019. See Doc. 12061 ¶ 7.

Dispositive and Daubert Motions.

17

C.

18

Motions in limine, limited to three pages each, shall be filed by

19

December 14, 2018. Responses to motions in limine, limited to three pages each, shall

20

be filed by December 28, 2019. No replies shall be filed.

Motions in Limine.

21

D.

22

The parties shall provide deposition designations by December 14, 2019.

23

E.

24

The proposed final pretrial order shall be submitted by January 11, 2019. The

25

Court will enter a separate order governing the materials that should be submitted with

26

the final pretrial order.

Deposition Designations.

Final Pretrial Order.

27

F.

28

The Court will hold a final pretrial conference on January 28, 2019 at 10:00 a.m.

Final Pretrial Conference.

-3-

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 4 of 6

1

G.

2

Trial in will be held on February 11-15, 19-22, 25-28, and March 1, 2019.

3

Plaintiff will be allotted 33 hours of trial time and Defendants will be allotted 30 hours of

4

trial time. This schedule should allow the case to get to the jury by the morning of

5

February 28, 2019.

6

III.

7
8
9
10
11

Trial Days.

May Bellwether Trial.
A.

Jury Questionnaire and Jury Selection.
1.

By March 1, 2019, the parties shall provide the Court with proposed

changes to the questionnaire. The Court will consider these proposals in finalizing the
questionnaire.
2.

The Clerk shall mail the questionnaire to 200 jurors no later than

12

March 8, 2019. The questionnaire will instruct the prospective jurors to return it to the

13

Court no later than April 5, 2019.

14

3.

A thumb drive will be prepared for counsel (one for each side)

15

containing copies of the questionnaires and will be available for pickup at the jury office

16

on April 12, 2019. The thumb drive and any paper copies made by counsel must be

17

returned to the Court by counsel on the day of jury selection.

18

4.

On April 19, 2019, the Court will provide the parties with a list of

19

prospective jurors the Court proposes to excuse for hardship on the basis of their

20

responses to the first question in the questionnaire.

21

5.

The Court will hold a final pretrial conference case on

22

April 30, 2019 at 10:00 a.m. At the final pretrial conference, counsel will be permitted

23

to challenge the Court’s excusal of any of the listed jurors for hardship. If counsel do not

24

object to the Court’s proposed excusal of a particular juror for hardship, that juror will be

25

excused from further involvement in this case. After hearing counsel’s objections to

26

hardship excusals, the Court will determine which of the challenged jurors should be

27

excused for hardship and which should appear for voir dire. In addition, counsel shall be

28

prepared to make challenges for cause to jurors on the basis of information contained in

-4-

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 5 of 6

1

their questionnaires. These challenges should be limited to jurors who clearly could not

2

serve as a fair juror on the basis of their questionnaire answers. The Court will rule on

3

these challenges at the final pretrial conference. All prospective jurors who returned

4

questionnaires and who have not been excused for hardship or successfully challenged

5

for cause will be candidates for voir dire.

6

6.

On May 13, 2019, at 9:00 a.m., 50 prospective jurors will be called

7

to Court to appear for voir dire. The Court will permit counsel to ask follow-up questions

8

of individual jurors based on information contained in the juror questionnaires. Counsel

9

should not venture into new subjects – they should limit their follow-up questions to the

10

items covered in the questionnaire. Following voir dire, the Court will hear and rule on

11

challenges for cause.

12
13

7.

8.

The Court anticipates that opening statements and evidence will

strikes.

14
15

The Court will seat 9 jurors. Each side will have 3 pre-emptory

begin on the afternoon of May 13, 2019.

16

B.

17

Dispositive and Daubert motions shall be filed by February 1, 2019, responses by

18

Dispositive and Daubert Motions.

March 1, 2019, and replies by March 15, 2019.

19

C.

20

Motions in limine, limited to three pages each, shall be filed by March 29, 2018.

21

Responses to motions in limine, limited to three pages each, shall be filed by

22

April 12, 2019. No replies shall be filed.

Motions in Limine.

23

D.

24

The parties shall provide deposition designations by March 29, 2019.

25

E.

26

The proposed final pretrial order shall be submitted by April 12, 2019. The Court

27

will enter a separate order governing the materials that should be submitted with the final

28

pretrial order.

Deposition Designations.

Final Pretrial Order.

-5-

Case 2:15-md-02641-DGC Document 12853 Filed 10/05/18 Page 6 of 6

1

F.

2

The Court will hold a final pretrial conference on April 30, 2019 at 10:00 a.m.

3

G.

4

Trial will be held on May 13-17, 20-24, and 28-31. Plaintiff will be allotted 33

5

hours of trial time and Defendants will be allotted 30 hours of trial time. This schedule

6

should allow the case to get to the jury by the morning of May 30, 2019.

7

IV.

8
9
10

Final Pretrial Conference.

Trial Days.

Motion to Seal Trial Exhibits.
Defendants shall file any motion to seal trial exhibits in the Jones and Hyde cases

by October 26, 2018.
V.

Settlement Talks and Remand.

11

Counsel shall meet in person and engage in good faith global settlement talks no

12

later than November 30, 2018. Within five working days after the talks, the parties shall

13

file a joint report informing the Court that good faith settlement talks have been held and

14

reporting generally on the outcome of such talks.

15

The Court intends to remand all cases in this MDL shortly after completion of the

16

May 2019 bellwether trial.

17

VI.

SNF Cases.

18

Defendants shall, by November 2, 2018, file a motion with the panel on

19

multidistrict litigation to expand this MDL to include the SNF cases or to create a new

20

MDL including the SNF cases. If the panel concludes that the motion should be granted

21

in some respect, the undersigned judge will be willing to oversee the SNF cases.

22

Dated this 5th day of October, 2018.

23
24
25
26
27
28

-6-

Case 2:15-md-02641-DGC Document 12971 Filed 10/16/18 Page 1 of 4

1
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,

No. MDL 15-02641-PHX-DGC
CASE MANAGEMENT ORDER NO. 39
(Tinlin Bellwether Case)

11
12
13
14
15

In Case Management Order (“CMO”) No. 36, issued August 2, 2018, the Court set

16

a schedule for the parties to follow in preparing the Tinlin bellwether case for trial.

17

Doc. 12061. Certain of those deadlines were extended two months later. Doc. 12759.

18

In CMO No. 38, the Court set a schedule for the final two bellwether trials, Mulkey and

19

Tinlin, to be held in February and May 2019. Doc. 12853 at 2-6. The Court determined

20

that Mulkey should be tried in February unless the Court were to grant summary

21

judgment in the case or Ms. Mulkey’s health were to worsen. Id. at 1-2. The Court left

22

open the possibility that Tinlin could be tried in February instead of May. Id.

23

The parties have now filed a stipulation that Tinlin should be tried only in the May

24

bellwether slot given that the present schedule for completion of discovery in Tinlin is

25

not feasible. Docs. 12895, 12924. The parties propose an amended discovery schedule

26

for Tinlin. Id.

27

The Court will accept the parties’ stipulation that Tinlin should be tried in May

28

and approve the proposed changes to the discovery schedule. This order will control the

Case 2:15-md-02641-DGC Document 12971 Filed 10/16/18 Page 2 of 4

1

schedule for the Tinlin trial. The deadlines and dates for the February bellwether trial, as

2

set forth in CMO 38, will continue to apply to Mulkey. See Doc. 12538 at 2-4.

3

I.

4
5

Tinlin Discovery Schedule.
The parties shall follow this amended schedule in preparing the Tinlin case for

trial in May 2019:

6
7

1.

2.

3.

4.

16
17

updated

medical

records

by

The parties shall complete the depositions of treating physicians and

Plaintiff’s case-specific expert disclosures shall be completed by

Defendants’ case-specific expert disclosures shall be completed by

December 17, 2018.

14
15

obtain

November 16, 2018

12
13

shall

fact witnesses by December 10, 2018.

10
11

parties

November 12, 2018.

8
9

The

5.
II.

Case-specific experts shall be deposed by January 18, 2019.

Tinlin Trial Schedule.
A.

Jury Questionnaire and Jury Selection.
1.

By March 1, 2019, the parties shall provide the Court with proposed

18

changes to the questionnaire. The Court will consider these proposals in finalizing the

19

questionnaire.

20

2.

The Clerk shall mail the questionnaire to 200 jurors no later than

21

March 8, 2019. The questionnaire will instruct the prospective jurors to return it to the

22

Court no later than April 5, 2019.

23

3.

A thumb drive will be prepared for counsel (one for each side)

24

containing copies of the questionnaires and will be available for pickup at the jury office

25

on April 12, 2019. The thumb drive and any paper copies made by counsel must be

26

returned to the Court by counsel on the day of jury selection.

27
28

4.

On April 19, 2019, the Court will provide the parties with a list of

prospective jurors the Court proposes to excuse for hardship on the basis of their

-2-

Case 2:15-md-02641-DGC Document 12971 Filed 10/16/18 Page 3 of 4

1

responses to the first question in the questionnaire.

2

5.

The Court will hold a final pretrial conference on April 30, 2019

3

at 10:00 a.m. At the final pretrial conference, counsel will be permitted to challenge the

4

Court’s excusal of any of the listed jurors for hardship. If counsel do not object to the

5

Court’s proposed excusal of a particular juror for hardship, that juror will be excused

6

from further involvement in this case. After hearing counsel’s objections to hardship

7

excusals, the Court will determine which of the challenged jurors should be excused for

8

hardship and which should appear for voir dire. In addition, counsel shall be prepared to

9

make challenges for cause to jurors on the basis of information contained in their

10

questionnaires. These challenges should be limited to jurors who clearly could not serve

11

as a fair juror on the basis of their questionnaire answers. The Court will rule on these

12

challenges at the final pretrial conference.

13

questionnaires and who have not been excused for hardship or successfully challenged

14

for cause will be candidates for voir dire.

15

6.

All prospective jurors who returned

On May 13, 2019, at 9:00 a.m., 50 prospective jurors will be called

16

to Court to appear for voir dire. The Court will permit counsel to ask follow-up questions

17

of individual jurors based on information contained in the juror questionnaires. Counsel

18

should not venture into new subjects – they should limit their follow-up questions to the

19

items covered in the questionnaire. Following voir dire, the Court will hear and rule on

20

challenges for cause.

21
22

7.

8.

The Court anticipates that opening statements and evidence will

strikes.

23
24

The Court will seat 9 jurors. Each side will have 3 pre-emptory

begin on the afternoon of May 13, 2019.

25

B.

26

Dispositive and Daubert motions shall be filed by February 1, 2019, responses by

27

Dispositive and Daubert Motions.

March 1, 2019, and replies by March 15, 2019.

28

-3-

Case 2:15-md-02641-DGC Document 12971 Filed 10/16/18 Page 4 of 4

1

C.

2

Motions in limine, limited to three pages each, shall be filed by March 29, 2018.

3

Responses to motions in limine, limited to three pages each, shall be filed by

4

April 12, 2019. No replies shall be filed.

Motions in Limine.

5

D.

6

The parties shall provide deposition designations by March 29, 2019.

7

E.

8

The proposed final pretrial order shall be submitted by April 12, 2019. The Court

9

will enter a separate order governing the materials that should be submitted with the final

10

Deposition Designations.

Final Pretrial Order.

pretrial order.

11

F.

12

The Court will hold a final pretrial conference on April 30, 2019 at 10:00 a.m.

13

G.

14

Trial will be held on May 13-17, 20-24, and 28-31. Plaintiff will be allotted 33

15

hours of trial time and Defendants will be allotted 30 hours of trial time. This schedule

16

should allow the case to get to the jury by the morning of May 30, 2019.

17

Final Pretrial Conference.

Trial Days.

Dated this 16th day of October, 2018.

18
19
20
21
22
23
24
25
26
27
28

-4-

Case 2:15-md-02641-DGC Document 13329 Filed 11/08/18 Page 1 of 5

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,

No. MDL 15-02641-PHX-DGC
CASE MANAGEMENT
ORDER NO. 40
(Mulkey Bellwether Trial)

11
12
13
14
15

Plaintiffs have filed a motion to remove the Mulkey case from the bellwether trial

16

schedule. Doc. 12990. The motion is fully briefed and no party has requested oral

17

argument. Docs. 13118, 13170. The Court will grant the motion.

18

I.

Background.

19

In April 2017, the parties submitted memoranda proposing specific cases for

20

bellwether trials from a pool of more than 40 cases. Docs. 5652, 5706. Both sides

21

selected the Mulkey case. Docs. 5652 at 3, 5706 at 1. Based on the parties’ submissions

22

and oral arguments at the ninth case management conference, the Court selected Mulkey

23

and four other cases for bellwether trials: Booker, Jones, Kruse, and Hyde. Doc. 5770

24

at 1. The Court stated that it would select a sixth bellwether case after two bellwether

25

trials had been completed. Id. at 2.

26

The Booker case was tried in March 2018 and resulted in a $3.6 million jury

27

verdict in the plaintiff’s favor. Docs. 10595, 10596. The Jones case was tried two

28

months later and resulted in a defense verdict. Doc. 11350.

Case 2:15-md-02641-DGC Document 13329 Filed 11/08/18 Page 2 of 5

1

Following the close of the Jones trial, the Court concluded that the order of the

2

next three bellwether trials should be Kruse, Hyde, and Mulkey. Doc. 11659 at 1. The

3

Court scheduled Kruse for September 2018, Hyde for November 2018, and Mulkey for

4

February 2019. Id. at 1-2. The Court selected Tinlin, a Recovery case, for the sixth

5

bellwether trial in May 2019. Id. at 4.

6

The Court subsequently granted summary judgment in favor of Defendants in the

7

Kruse case. Doc. 12202. The parties agreed that Hyde could be moved to the September

8

2018 bellwether trial slot in lieu of Kruse. Doc. 11871 at 1. The Hyde trial resulted in

9

another defense verdict. Doc. 12891.

10

Due to certain health issues experienced by Ms. Mulkey and the fact that

11

discovery in Tinlin was ongoing, the Court determined that Mulkey should be tried in

12

February 2019 and Tinlin three months later. Docs. 12061, 12853, 12971. The Court

13

also determined that a sixth bellwether trial would not be necessary. Doc. 12853 at 1.

14

The summary judgment granted in Kruse had resolved a sixth case.

15

Plaintiffs seek to remove Mulkey from the bellwether trial schedule, arguing that

16

another trial involving an Eclipse filter would be redundant and a waste of resources.

17

Doc. 12990 at 4-6. Defendants oppose the motion. Doc. 13118.

18

II.

Discussion.

19

The primary purposes of this MDL – common discovery and ruling on common

20

issues – have been accomplished. The parties requested that the Court hold bellwether

21

trials to provide insight into how their claims and defenses would be received by juries,

22

with the hope that a global settlement could be achieved before the cases are remanded.

23

See In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997); Manual for Complex

24

Litigation, Fourth § 22.315 (Federal Judicial Center 2004). The four bellwether cases

25

resolved to date – Booker, Jones, Kruse, and Hyde – have served this purpose.

26

Booker involved a G2 filter that had experienced multiple failures, with a

27

fractured strut migrating to the plaintiff’s heart. See Doc. 8873 at 2. The jury found in

28

favor of the plaintiff on the failure to warn and punitive damages claims, awarding $1.6

-2-

Case 2:15-md-02641-DGC Document 13329 Filed 11/08/18 Page 3 of 5

1

million in compensatory and $2 million in punitive damages. Docs. 10595, 10596.

2

Plaintiffs have stated that this verdict provides sufficient information regarding the

3

estimated value of G2 cases involving fractures and serious injuries (Doc. 13117 at 49),

4

and neither side proposes trying another G2 bellwether case.

5
6
7
8

Jones involved an Eclipse filter that had experienced failures similar to the G2
filter in Booker. The trial resulted in a defense verdict.
Kruse was resolved in Defendants’ favor on the basis of a statute of limitations
defense. The same defense is asserted in other MDL cases.

9

Hyde was tried as both a G2X and Eclipse case, with Plaintiffs claiming that

10

Ms. Hyde’s filter was a G2X and Defendants claiming that it was an Eclipse. The parties

11

agree that the Eclipse filter design is same as the G2X, with the exception of electro-

12

polishing. The trial produced another defense verdict.

13

If Mulkey goes to trial, it would be the third trial involving an Eclipse filter. The

14

parties have learned much about the strengths, weaknesses, and value of Eclipse cases

15

from the Jones and Hyde trials. Defendants would present essentially the same liability

16

evidence in Mulkey that they presented in Jones and Hyde.

17

Plaintiffs believe there is nothing to gain from trying another Eclipse case.

18

Docs. 12990 at 4-6, 13117 at 7-8. The Court similarly concludes that there is little to

19

gain, and that the limited knowledge to be acquired from another Eclipse trial is

20

outweighed by the time, money, and judicial resources another three-week jury trial

21

would consume.

22

Defendants assert that Mulkey is different from Jones and Hyde because it is a

23

non-fracture case, and would be the only such case among the bellwether trials.

24

Doc. 13118 at 3. But Plaintiffs dispute this assertion, and would present evidence at trial

25

suggesting that a filter arm fractured. Docs. 12990 at 5, 13170 at 3 & n.2. Plaintiffs

26

further claim that several filter limbs have perforated Ms. Mulkey’s IVC wall, and

27

imaging in January 2017 shows that the limbs are abutting the aorta and interacting with

28

the duodenum and L3-L4 disc space. Doc. 12990 at 5. The Court does not agree with

-3-

Case 2:15-md-02641-DGC Document 13329 Filed 11/08/18 Page 4 of 5

1

Defendants’ assertion that Mulkey “is close to a non-injury case.” Doc. 13117 at 55-56;

2

see Doc. 13118 at 4. And if another Eclipse defense verdict resulted from a Mulkey trial,

3

as appears likely, the parties would learn nothing about the valuation of limited injuries in

4

filter cases.

5

Defendants suggest that Plaintiff’s motion is an attempt to game the bellwether

6

trial process. The Court does not agree. The Court previously warned the parties that it

7

would not tolerate attempts to manipulate the bellwether trial process, and still holds that

8

view. Doc. 8871 at 1-2. Plaintiffs seek to eliminate the Mulkey trial because it would be

9

the third trial to present Eclipse filter evidence, and the previous two have already

10

resulted in defense verdicts. This is not, in the Court’s view, an effort to skew the

11

bellwether process, but a legitimate effort to avoid the expense of a trial that most likely

12

will provide little new information.1

13

As the Court noted when the bellwether process began, “five or six cases should

14

provide the parties with ample information to achieve global settlement if such settlement

15

is possible.” Id. at 2. With completion of the Tinlin trial, the Court will have resolved

16

five bellwether cases on the merits – one on the statute of limitations defense and four

17

through jury trials.

18

The Court will grant Plaintiffs’ motion and remove Mulkey from the bellwether

19

trial schedule. This decision is based not on Ms. Mulkey’s withdrawal of her Lexecon

20

waiver, but on the Court’s decision that the time and expense of trying Mulkey would

21

significantly outweigh any benefits to be derived from the trial.

22

IT IS ORDERED:

23

1.

24

Plaintiffs’ motion to amend the bellwether trial schedule to remove the

Mulkey case (Doc. 12990) is granted.

25
26
27
28

1

The Court also disagrees with Defendants’ suggestion that Plaintiffs previously
tried to skew the bellwether pool by failing to provide Lexecon waivers in two cases. As
Defendants know, the Court specifically found otherwise. See Doc. 3214 at 1.

-4-

Case 2:15-md-02641-DGC Document 13329 Filed 11/08/18 Page 5 of 5

1

2.

The dates and deadlines for the February 2019 bellwether trial set forth in

2

Case Management Order No. 38 (Doc. 12853 at 2-4) are vacated. The Court will try the

3

Tinlin case in May 2019 as presently scheduled. See Doc. 12971 (CMO No. 39).

4

3.

The Court will hold a status conference with the parties on

5

December 6, 2018, at 10:00 a.m. Out-of-state counsel may participate by phone. The

6

purpose will be to discuss compliance with the Tinlin schedule and any other matters the

7

parties deem relevant. The parties should file a joint status report three days before the

8

conference.

9

Dated this 8th day of November, 2018.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 1 of 8

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11

IN RE: Bard IVC Filters Products Liability
Litigation

No. MDL 15-02641-PHX-DGC
THIRD AMENDED CASE
MANAGEMENT ORDER NO. 1

12
13
14
15

In Case Management Order (CMO) No. 1, entered October 30, 2015, the Court set

16

appointments of Plaintiffs’ leadership for a term of one year. Doc. 248. The Court entered

17

Amended CMO No. 1 on November 16, 2016, re-appointing Co-Lead Counsel and

18

appointing a Plaintiffs’ Executive Committee for another one-year term. Doc. 4016. On

19

March 21, 2017, the Court issued Second Amended CMO No. 1 re-appointing Co-Lead

20

Counsel and Plaintiffs’ Executive Committee through November 16, 2017. Doc 5285. The

21

Court has reviewed Plaintiffs’ Co-Lead/Liaison Counsel’s Memorandum Re Leadership

22

Appointments (Doc. 14418) and issues this Third Amended CMO No. 1 for the appointment

23

of individuals to Plaintiffs’ leadership in this MDL for the term of this Order.

24

I.

Plaintiffs’ Leadership Counsel Appointments.

25

The Court having considered all of the applications submitted and other relevant

26

information, appoints the following plaintiffs’ counsel to leadership positions, as indicated

27

and to be known as “Plaintiffs Leadership Counsel” (PLC):

28

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 2 of 8

1
2
3
4
5

Plaintiffs’ Co-Lead/Liaison Counsel and State/Federal Liaison Counsel
Lopez McHugh, LLP
Ramon R. Lopez
100 Bayview Cir., Ste. 5600
Newport Beach, CA 92660
Beus Gilbert PLLC
Mark S. O’Connor
701 N. 44th Street
Phoenix, AZ 85008

6
7

Plaintiffs’ Executive Committee (PEC)

8

Julia Reed Zaic

9
10

Howard L. Nations

11
12

Russell W. Budd

13
14

Wendy R. Fleishman

15
16

Plaintiffs’ Steering Committee (PSC)

17

Shannon Clark

Heaviside Reed Zaic
312 Broadway St., Ste. 203
Laguna Beach, CA 92651
The Nations Law Firm
3131 Briarpark Dr., #208
Houston, TX 77042
Baron & Budd, P.C.
3102 Oak Lawn Ave., Ste. 1100
Dallas, TX 75219
Lieff, Cabraser, Heimann & Bernstein, LLP
250 Hudson St., 8th Floor
New York, NY 10013

18
19

John A. Dalimonte

20
21

Ben C. Martin

22
23

Joseph R. Johnson

24
25

Thomas P. Cartmell

26
27
28

Margaret Branch

Gallagher & Kennedy, PA
2575 E. Camelback Rd., Ste. 1100
Phoenix, AZ 85016
Dalimonte Rueb, LLP
85 Devonshire St., Ste. 1000
Boston MA, 02109
Law Offices of Ben C. Martin
3219 McKinney Ave., Ste. 100
Dallas, TX 75204
Babbitt & Johnson, PA
1641 Worthington Rd., #100
West Palm Beach, FL 33409
Wagstaff & Cartmell, LLP
4740 Grand Ave., #300
Kansas City, MO 64112
Branch Law Firm
2025 Rio Grande Blvd, NW
Albuquerque, NM 87104
2

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 3 of 8

1

Donald A. Migliori

2
3

Sheila M. Bossier

4
5

Stuart L. Goldenberg

6
7

Christopher T. Kirchmer

8
9

Michael A. Kelly

10
11

Matthew McCarley

12
13

Hadley L. Matarazzo

14
15

Eric M. Terry

16
17

Joseph A. Osborne

18
19

Michael T. Gallagher

20
21

Calle Mendenhall

22
23

Matthew Schultz

24
25
26
27
28

Steven Rotman

Motley Rice, LLC
321 South Main St., 2nd Floor
Providence, RI 02903
Bossier & Associates PLLC
1520 North State St.
Jackson, MS 39202
Goldenberg Law, PLLC
800 Lasalle Ave., #2150
Minneapolis, MN 55402
Provost Umphrey Law Firm, LLP
490 Park St., P.O. Box 4905
Beaumont, TX 77704
Walkup, Melodia, Kelly & Schoenberger
650 California St.
San Francisco, CA 94108
Fears Nachawati Law Firm
4925 Greenville Ave., Ste. 715
Dallas, TX 75206
Faraci Lange, LLP
First Federal Plaza
28 East Main St., Ste. 1100
Rochester, NY 14614
TorHoerman Law, LLC
210 Main St.
Edwardsville, IL 62025
Osborne & Associates Law Firm, PA
433 Plaza Real, Ste. 271
Boca Raton, FL 33432
The Gallagher Law Firm, LLP
2905 Sackett Street
Houston, TX 77098
Farris, Riley & Pitt LLP
The Financial Center
505 20th Street North, Ste. 1700
Birmingham, AL 35203
Levin Papantonio Thomas Mitchell
Rafferty Proctor, PA
316 S. Baylen St.
Suite 600
Pensacola FL 32502
Hausfeld, LLP
1700 K Street NW
Suite 650
Washington DC 20006
3

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 4 of 8

1

II.

2

Responsibilities.
A.

3

Procedural Matters.
1.

As noted in this Court’s previous Order Setting Initial Case

4

Management Conference dated September 15, 2015, the Clerk of this Court will maintain

5

a master docket case file under the style “In Re: Bard IVC Filters Products Liability

6

Litigation” and the identification “MDL No. 2641.” Lead/Liaison will be (a) the only

7

attorneys permitted to file in the Master Docket as to all actions, and (b) the only attorneys

8

receiving Notices of Electronic Filing for pleadings and orders filed in the Master Docket

9

for all actions.

10

2.

With regard to the Master Docket, Plaintiffs’ Lead/Liaison Counsel

12

a.

Serve as the recipient for all Court orders.

13

b.

Coordinate service and filings for all plaintiffs whether presently

14

included or subsequently added.

15

c.

16

up-to-date service list.

17

d.

18

as to filings made in the master docket. Specifically, Lead/Liaison Counsel

19

shall receive and distribute, to all other Plaintiffs’ counsel, pleadings orders,

20

and motions by email, overnight courier service, or telecopier, within two

21

days after receipt, unless such service has been waived, in writing, by a

22

receiving counsel.

23

e.

24

Court's jurisdiction.

25

3.

11

shall:

Maintain and distribute to co-counsel and to Defendants’ Counsel an

Maintain responsibility for service upon all other attorneys and parties

Coordinate discovery and litigation with similar cases outside of this

Lead/Liaison Counsel is only responsible for service with regard to

26

filings in the Master Docket. With regard to case-specific filings, all attorneys of record in

27

the relevant member action will receive a Notice of Electronic Filing from the Court.

28
4

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 5 of 8

1

4.

New counsel for later-filed or later-transferred cases that become part

2

of this MDL shall be responsible for checking the Master Docket for all orders previously

3

entered that may have relevance to such new cases.

4

B.

5

In addition to the responsibilities identified above, Plaintiffs’ Lead/Liaison Counsel

6

shall:

7
8

Responsibilities Specific to Lead/Liaison Counsel.

1.

Coordinate the establishment of a document depository, real or virtual,

to be available to all participating plaintiffs’ counsel;

9

2.

Maintain and make available to all participating plaintiffs’ counsel of

10

record, at reasonable hours, a complete file of all documents served by or upon each party

11

(except documents as may be available at a document depository);

12
13

3.

Prepare agendas for court conferences and periodically report

regarding the status of the case; and

14

4.

Carry out such other duties as the Court may order.

15

C.

16

The PEC shall assist, advise, and collaborate with Co-Lead Counsel in the discharge

17

of duties of liaison and Co-Lead Counsel outlined in Sections II. A and B above. The PEC,

18

with the authority of Co-Lead counsel, and in coordination with their efforts and

19

responsibilities, shall assist and collaborate with Co-Lead Counsel in the administration,

20

organization, and strategic decisions of the PLC. At the direction of Co- Lead Counsel

21

PEC members shall have the authority to make, supervise and oversee assignments to other

22

PSC members.

23

D.

24

Plaintiffs’ Leadership Counsel shall have the following responsibilities:

Responsibilities of Plaintiffs’ Executive Committee.

Responsibilities Applicable to all Plaintiffs’ Leadership Counsel.

25

1.

26

a. Initiate, coordinate, and conduct all pretrial discovery on behalf of

27

Discovery

plaintiffs in all actions which are consolidated with this MDL.

28
5

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 6 of 8

1

b. Develop and propose schedules for the commencement, execution, and

2

completion of all discovery on behalf of all plaintiffs.

3

c. Cause to be issued in the name of all plaintiffs the necessary discovery

4

requests, motions and subpoenas pertaining to any witnesses and

5

documents needed to properly prepare for the trial of relevant issues found

6

in the pleadings of this litigation.

7

d. Conduct all discovery in a coordinated and consolidated manner on behalf

8
9

of and for the benefit of all plaintiffs.
2.

Hearings and Meetings

10

a. Call meetings of counsel for plaintiffs for any appropriate purpose,

11

including coordinating responses to questions of other parties or of the

12

Court. Initiate proposals, suggestions, schedules or joint briefs, and any

13

other appropriate matters pertaining to pretrial proceedings.

14

b. Examine witnesses and introduce evidence on behalf of plaintiffs at

15

hearings.

16

c. Act as spokespersons for all plaintiffs at pretrial proceedings and in

17

response to any inquiries by the Court, subject to the right of any plaintiff’s

18

counsel to present non-repetitive individual or different positions.

19

3.

20

a. Submit and argue all verbal and written motions presented to the Court on

21

behalf of Plaintiff’s Leadership Counsel as well as oppose when necessary

22

any motion submitted by defendants or other parties which involve

23

matters within the sphere of the responsibilities of Plaintiffs’ Leadership

24

Counsel.

Miscellaneous

25

b. Negotiate and enter into stipulations with defendants regarding this

26

litigation. All stipulations entered into by Plaintiffs’ Leadership Counsel,

27

except for strictly administrative details such as scheduling, must be

28

submitted for Court approval and will not be binding until ratified by the
6

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 7 of 8

1

Court.

2

stipulation shall file with the Court a written objection within five (5) days

3

after he/she knows or should have reasonably become of aware of the

4

stipulation. Failure to object within the term allowed shall be deemed a

5

waiver and the stipulation will automatically be binding on that party.

6

c. Explore, develop, and pursue all settlement options pertaining to any

7

Any attorney not in agreement with a non-administrative

claim or portion thereof of any case filed in this litigation.

8

d. Maintain adequate files of all pretrial matters, including establishing and

9

maintaining a document or exhibit depository, in either real or virtual

10

format, and having those documents available, under reasonable terms and

11

conditions for examinations by all MDL plaintiffs or their attorneys.

12

e. Perform any task necessary and proper for Plaintiffs Leadership Counsel

13

to accomplish its responsibilities as defined by the Court’s orders,

14

including organizing subcommittees comprised of plaintiffs’ lawyers not

15

on Plaintiffs’ Leadership Counsel.

16

f. Work with Lead/Liaison Counsel to coordinate the responsibilities of

17

Plaintiffs’ Leadership Counsel meetings, keep minutes or transcripts of

18

these meetings, appear at periodic Court-noticed status conferences,

19

perform other necessary administrative or logistic functions of Plaintiffs’

20

Leadership Counsel, and carry out any duty as ordered by the Court.

21

g. Perform other such functions that may be expressly authorized by further

22

Court Orders.

23

E.

24

Plaintiffs’ Leadership Counsel shall be entitled to seek reimbursement for costs

25

expended at the time and in a manner approved by the Court. Reimbursements will be

26

governed by a further case management order to be proposed by Plaintiffs’ Leadership

27

Counsel and entered by the Court.

Reimbursement of Costs Expensed.

28
7

Case 2:15-md-02641-DGC Document 15098 Filed 02/04/19 Page 8 of 8

1

III.

Term of Appointments.

2

Appointments to all leadership positions in this order shall last until November 16,

3

2019 unless terminated earlier by the Court. Thirty days before the expiration of this one-

4

year term, Lead/Liaison Counsel shall file a memorandum notifying the Court of the need

5

to make further appointments and making recommendations regarding these appointments.

6

Dated this 4th day of February, 2019.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8

Case 2:15-md-02641-DGC Document 15176 Filed 02/08/19 Page 1 of 3

1
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. 41
(Tinlin Trial, SNF Cases, Remand of Mature
Cases, and Possible Settlement Procedures)

12
13
14
15

The Court held a case management conference with the parties on February 1,

16

2019. See Doc. 15070. The conference concerned issues raised in the parties’ joint status

17

report (Doc. 14870) and other matters. On the basis of the conference, the Court enters

18

the following orders:

19

1.

20

The Court reviewed with the parties the schedule for the Tinlin trial, as set forth in

21

Case Management Order No. 39 (Doc. 12971), as modified by a later minute entry

22

(Doc. 13587). With the exception of one expert deposition, the parties are on schedule.

23

The Court agrees that the parties may complete the deposition of Dr. Morris during the

24

month of February 2019. See Doc. 14870 at 2. The rest of the schedule will remain in

25

place.

Tinlin Trial.

26

The Court discussed with the parties the ability of Ms. Tinlin to travel to Phoenix

27

for trial. Plaintiff’s counsel should provide an update to the Court on this issue by

28

March 1, 2019. If Plaintiff’s counsel learn that Ms. Tinlin cannot travel, counsel for

Case 2:15-md-02641-DGC Document 15176 Filed 02/08/19 Page 2 of 3

1

both sides should confer about her possible remote participation in the trial and, if she

2

intends to testify, about compliance with Rule 43(a). Plaintiff’s counsel will also need to

3

begin making arrangements to have Ms. Tinlin participate in the trial from the federal

4

court in Wisconsin. This topic should be addressed in the March 1, 2019 status report.

5

2.

6

The Court agrees with the parties’ assessment (id. at 2-3) that the recent order of

7

the Judicial Panel on Multidistrict Litigation (Doc. 14112) confirms that the SNF cases

8

are part of this MDL proceeding. The Court enters the following orders:

9

Simon Nitinol Filter (“SNF”) Cases.

a.

By March 1, 2019, Plaintiffs’ lead counsel shall contact and confer

10

with attorneys representing SNF clients in this MDL proceeding. Lead counsel will

11

inform these attorneys that the Court is requiring them to organize into a plaintiffs’

12

steering committee for SNF cases and to assist in the management and efficient litigation

13

of those cases.

14

b.

Attorneys responsible for those cases shall confer with defense

15

counsel regarding an appropriate schedule and procedures for preparing the cases for

16

trial. These discussions should include the five topics identified in the parties’ joint

17

status report (Doc. 14870 at 3).

18

c.

The Court will hold a case management conference on March 18,

19

2019, at 2:00 p.m. Current lead counsel for Plaintiffs, defense counsel, and lawyers who

20

agree to represent SNF plaintiffs in this MDL will participate in the conference. The

21

purpose of the conference will be to identify leadership for the SNF plaintiffs and

22

establish an efficient schedule for litigating the SNF cases. The parties shall file a joint

23

status report regarding the SNF cases by March 13, 2019.

24

d.

Once lead plaintiffs’ counsel have been identified for the SNF cases,

25

the Court will require them to reach agreement on the establishment of a common fund

26

for the SNF cases. The Court presumes that this agreement will be similar to the

27

common fund established for the rest of this MDL. See Doc. 372 (CMO No. 6).

28

e.

The Court’s intent will be to complete discovery and motion practice

-2-

Case 2:15-md-02641-DGC Document 15176 Filed 02/08/19 Page 3 of 3

1

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

2

bellwether trials on the SNF cases.

3

3.

4

The Court confirmed that an order for transfer of the record to the transferor

5

districts for the mature cases has been entered. See Doc. 14973. The Clerk’s office has

6

sent a zip file to each of these districts containing the record on remand stipulated to by

7

the parties. See Doc. 13158.

Remand of Mature Cases.

8

4.

9

The Court and parties discussed the possibility of establishing a separate track in

10

this MDL for cases likely to be resolved in settlement. Defense counsel proposed that

11

cases which have been settled in principle, or which are near settlement in principle,

12

could be placed on this track until the settlements could be consummated, rather than

13

being remanded to transferor districts. The Court is willing to consider such a procedure,

14

but directed the parties to confer and present a joint proposal by March 1, 2019. Any

15

such proposal would need to specify the basis on which a case would be identified to be

16

placed on a settlement track rather than being remanded to the transferor court, establish

17

a schedule under which cases on the settlement track would either reach a completed

18

settlement or be remanded, and a schedule for when the settlement track would be

19

initiated and how long it would remain in place. After receiving this submission, the

20

Court will consider whether such a settlement track would be appropriate in this case, or

21

whether remand of all cases should simply begin after the Tinlin trial.

22

Possible Establishment of Settlement Procedures.

Dated this 8th day of February, 2019.

23
24
25
26
27
28

-3-

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 1 of 7

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,

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 2 of 7

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-

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 3 of 7

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-

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 4 of 7

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-

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 5 of 7

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-

Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 6 of 7

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

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tracks:

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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.

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

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

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

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likely in the near future.

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b.

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

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

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

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

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

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28 U.S.C. § 1404(a).

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c.

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

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

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

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

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

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

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

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

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

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

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

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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

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Case 2:15-md-02641-DGC Document 16343 Filed 03/21/19 Page 7 of 7

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

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

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

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e.

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

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

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

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dismissal.

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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

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

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

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h.

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

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

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

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

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

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

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i.

The parties may take videotaped trial testimony of key witnesses between

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

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or transfer.

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j.

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

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

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identifying such a date.

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Dated this 21st day of March, 2019.

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Case 2:15-md-02641-DGC Document 17494 Filed 05/02/19 Page 1 of 3

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: Bard IVC Filters Products
Liability Litigation,

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No. MDL 15-02641-PHX-DGC
CASE MANAGEMENT ORDER NO. 43
(Tinlin Trial, Common Benefit Fund Fee
and Expense Accounts, Closing Date for
New Cases and Remand or Transfer, and
SNF Cases)

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The Tinlin bellwether trial will begin on May 13, 2019. Doc. 12971 at 3-4. The

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Court held a final pretrial conference with the parties on April 29, 2019. Doc. 17453. The

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conference concerned issues raised in the parties’ trial briefs and proposed final pretrial

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order, and other matters. On the basis of the conference, the Court enters the following

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orders:

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1.

Tinlin Trial.
a.

By May 8, 2019, the parties shall file a joint witness list to give to the

prospective jurors on the first day of trial.
b.

Plaintiffs shall file a memorandum regarding the ruling on MIL 1

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(Docs. 16576, 17285) by the close of business on May 1, 2019. Defendants shall file a

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response by the close of business on May 3, 2019. The memoranda are limited to three

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pages each. No reply shall be filed.
c.

By May 6, 2019, the parties shall jointly file proposed jury

instructions for the fraudulent concealment claim and revised proposed verdict forms.

Case 2:15-md-02641-DGC Document 17494 Filed 05/02/19 Page 2 of 3

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d.

By close of business on May 3, 2019, Defendants shall file a response,

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limited to three pages, to Plaintiffs’ argument that Wisconsin law does not allow a

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manufacturer to allocate fault to third parties on strict product liability claims. Doc. 17357

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at 2.

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e.

Plaintiffs shall notify the Court by the close of business on May 1,

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2019, as to when the Tinlins will be testifying. Plaintiffs are directed to make advanced

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arrangements with the courtroom deputy should the Tinlins wish to listen to any portion of

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the trial by telephone.

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f.

By May 3, 2019, the parties shall jointly file a revised proposed

preliminary instruction regarding video appearance that includes Mr. Tinlin.

See

Doc. 17436 at 8.

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2.

Motion for Common Benefit Fund Fee and Expense Accounts.

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a.

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By May 10, 2019, the parties shall file a joint proposed order for the

establishment of common benefit fee and expense accounts and appointment of an escrow
agent.

See Docs. 372 at 9, 16932 at 2-3. The Court will decide whether to increase

common benefit fee and cost assessments when the issue is fully briefed and the Court’s
schedule permits. See Doc. 372 at 10.
b.

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granted.

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3.

Plaintiffs’ request for a one-week extension to file a reply brief is

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Closing Date for New Cases and Remand or Transfer of Cases.
a.

The closing date for new cases to be transferred to or directly filed in

this MDL is May 31, 2019. See Doc. 16343 at 7.
b.

The parties’ joint memorandum identifying all cases in this MDL that

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fall within the two settlement tracks, due July 1, 2019 (id. at 6, ¶ 4(a)), shall (1) identify

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each case not included in Track 1 or Track 2, and (2) state for each such case whether it

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was transferred by the JPML or directly filed in this MDL, and identify the district from

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which it was transferred by the JPML or the district to which it should be transferred if it

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Case 2:15-md-02641-DGC Document 17494 Filed 05/02/19 Page 3 of 3

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was directly filed in the MDL (see id. ¶ 4(c)).

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4.

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In Case Management Order 42, the Court gave attorneys in SNF cases until May 1,

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2019 to, among other things, organize into a Plaintiffs’ steering committee and designate

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lead counsel for SNF cases. Id. at 4. At the April 29 conference, attorney Nicole

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Maldonado appeared on behalf of attorneys with SNF cases. Based on the discussions with

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Ms. Maldonado and counsel for Defendants, the Court will not dismiss the SNF cases at

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this time.

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status of the remaining SNF cases. The Court will then address how to proceed with the

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Simon Nitinol Filter (“SNF”) Cases.

Ms. Maldonado shall file a report by July 1, 2019 regarding the nature and

SNF cases.
Dated this 2nd day of May, 2019.

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