United States District Court, D. Arizona
Maria E. Barraza, et al., Plaintiffs,
C. R. Bard Inc., and Bard Peripheral Vascular Inc., Defendants.
G. CAMPBELL, UNITED STATES DISTRICT JUDGE
September 11, 2017, the Court denied Plaintiffs' motion
for class certification. See Doc. 95. At a
subsequent status conference, Plaintiffs requested an
opportunity to file a second motion for class certification.
The Court directed the parties to file memoranda on that
issue, which they did (Docs. 99, 100), and held a follow-up
telephone conference with the parties on November 2, 2017.
For the following reasons, the Court will deny
23(c)(1)(C) provides that “[a]n order that grants or
denies class certification may be altered or amended before
final judgment.” Plaintiffs cite this rule, and note
that trial courts have broad discretion to reconsider class
certification decisions. See Armstrong v. Davis, 275
F.3d 849, 872 n.28 (9th Cir. 2001) (Rule 23 “confers
broad discretion to determine whether a class should be
certified, and to revisit that certification throughout the
legal proceedings before the court.”). This discretion
cuts both ways. As the Second Circuit has noted, district
courts “have ample discretion to consider (or decline
to consider) a revised class certification motion after
initial denial.” In re Initial Public Offering SEC.
Litig., 483 F.3d 70, 73 (2nd Cir. 2007).
have had ample opportunity to formulate and reformulate their
proposed class action. Plaintiffs filed their initial class
complaint on May 5, 2016. Doc. 1. With leave of court,
Plaintiffs filed an amended class complaint on October 4,
2016, adding a new class representative. Doc. 27. Plaintiffs
filed another amended class complaint on January 12, 2017,
adding another class representative. Doc. 36. Plaintiffs
moved again to amend their complaint on January 13, 2017
(Doc. 38), but withdrew this motion one month later (Doc.
43). Plaintiffs were permitted to designate yet another class
representative on May 20, 2017. Doc. 51. Plaintiffs filed a
further motion to amend their complaint with their class
certification motion. Doc. 57. This amendment sought to
revise the medical monitoring remedy Plaintiffs seek in this
case. The Court permitted the amendment. Doc. 95. Thus,
Plaintiffs revised their class complaint multiple times,
naming new class representatives and refining the requested
remedy. The Court held at least five telephone conferences
with the parties as Plaintiffs worked through these various
iterations. See Docs. 41, 42, 43, 45, 59.
Plaintiffs' modification of their class proposal was not
limited to these amendments - they made more modifications
during the class certification process. Plaintiffs'
motion to certify, filed after almost a year of class-related
discovery and expert disclosures (Doc. 22), recognized that
16 states permit claims for medical monitoring (Doc. 54).
Plaintiffs sought to certify a single class that included all
Bard filter recipients in all of those states:
The proposed class is defined to include all individuals in
the 16 jurisdictions that allow medical monitoring without
manifest physical injury, who have been implanted with a Bard
Retrievable Filter since July 25, 2013 (the date Bard
received clearance to market the first of its filters as
retrievable) to the present, who have not had their filters
removed (and are at least ninety days post-implant), and who
have not filed a personal injury lawsuit concerning their
Doc. 54-1 at 21.
changed course at the class certification hearing. Their
counsel stated that Plaintiffs no longer were seeking
certification of a single class for all 16 states, but
instead were seeking certification of 16 separate classes,
one for each state. Doc. 94 at 50-51. When it was noted that
five of the 16 states had no class representative,
Plaintiffs' counsel argued that the Court could certify
classes for these five states without a class representative.
Id. at 74. When the Court noted that Rule 23(a)
cannot be satisfied without a class representative,
Plaintiffs changed tack again, stating that “[w]e are
only asking that you certify the states at this time where we
have identified a rep. If the Court does certify those
states, we would ask for leave to add additional reps in the
states that don't have reps at the moment.”
Id. at 74-75. This was the proposal addressed in the
Court's September 11, 2017 order. Doc. 95.
Court denied Plaintiffs' proposal to add new class
representatives for the five states that lacked
The Court will not allow Plaintiffs to amend their complaint
to name class representatives for the five proposed classes
that lack named plaintiffs. Plaintiffs had months to seek
such amendments, and did in fact change named Plaintiffs
several times. Adding new Plaintiffs now would require the
class discovery period (see Doc. 22) to start over,
would prejudice Defendants, and would thwart the schedule the
Court has sought to follow in this case and the related MDL.
Id. at 4 n. 4.
Plaintiffs have not been limited to a single opportunity to
craft their proposed class or classes. Their complaint went
through at least four iterations (Docs. 1, 27, 35, 96), and
Plaintiffs proposed three different variations of the classes
during the certification process: a single class for all
states, 16 separate state classes, and 11 classes for the
states with named Plaintiffs.
now propose an entirely new approach. They seek to certify a
single class limited to recipients of the Bard G2 filter in
Florida, and suggest that the Court adopt “a
bellwether-class procedure [that] allows the parties and the
court to focus pre-trial and trial efforts (other than
discovery) on the claims arising under a single state law,
before turning to litigation of the many other states at
issue in this case.” Doc. 99 at 6 (emphasis
added). In other words, Plaintiffs ask the Court to abandon
the approach pursued from the outset of this case (with the
agreement of the parties), certify a narrow class for one
filter in one state, and subsequently address similar classes
from other states.
proposal clearly is not workable. Plaintiffs presently have
only one class representative for each of the 11 states, and
each representative has only one kind of Bard filter. These
representatives could not represent separate classes of
persons in their states who have different kinds of filters,
and the Court has already ruled that it will not permit the
addition of new named Plaintiffs at this late stage of the
litigation. And if Plaintiffs propose to use the existing
Plaintiffs to assert separate classes for each of the filters
in each of the 11 states, then the Court would be confronted
with scores of potential class actions. Plaintiffs'
counsel argued during the November 2, 2017 hearing that they
would no more seek to try all classes before this Court than
they will seek to try all 3, 100 cases in the MDL before this
Court, but there is a fundamental difference between this
case and the MDL. Cases in the MDL have been transferred to
this Court from other courts, and will be transferred back to
their original courts if settlement is not reached after the
bellwether trials. This case, by contrast, was ...