United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation, Date Filed Docket No Docket Text Date Filed Docket No Docket Text DISCOVERY AND PRIVILEGE ORDERS Date Filed Docket No Docket Text DAUBERT ORDERS Date Filed Docket No Docket Text MOTIONS IN LIMINE ORDERS Date Filed Docket No Docket Text DEPOSITION DESIGNATION ORDERS Date Filed Docket No Docket Text MISCELLANEOUS ORDERS Date Filed Docket No Docket Text Disputed Issue Plaintiffs' Position Defendants' Position
ORDER AND SUGGESTION OF REMAND
G. Campbell Senior United States District Judge.
multidistrict litigation proceeding (“MDL”)
involves thousands of personal injury cases brought against
Defendants C. R. Bard, Inc. and Bard Peripheral Vascular,
Inc. (collectively, “Bard”). Bard manufactures
and markets medical devices, including inferior vena cava
(“IVC”) filters. The MDL Plaintiffs have received
implants of Bard IVC filters and claim that they are
defective and have caused Plaintiffs to suffer serious injury
was transferred to this Court in August 2015 when 22 cases
had been filed. Doc. 1. To date, more than 4, 000 cases have
been filed. The Court has concluded that 10 mature cases
listed on Schedule A should be remanded to the transferor
courts. Doc. 11659 at 5. The Court therefore provides this
Suggestion of Remand to the United States Judicial Panel for
Multidistrict Litigation (the “Panel”).
assist the transferor courts on remand, if ordered by the
Panel, this order describes events that have taken place in
the mature cases and the MDL as a whole. A copy of this
order, along with the case files and materials, will be
available to the transferor courts after remand.
is a large vein that returns blood to the heart from the
lower body. An IVC filter is a small device implanted in the
IVC to catch blood clots before they reach the heart and
lungs. This MDL involves multiple versions of Bard IVC
filters - the Recovery, G2, G2X, Eclipse, Meridian, and
Denali. These are umbrella-shaped devices that have multiple
limbs fanning out from a cone-shaped head. The limbs consist
of legs with hooks that attach to the IVC wall and curved
arms to catch or break up blood clots. Each of these filters
is a variation of its predecessor.
Plaintiffs allege that Bard filters are more dangerous than
other IVC filters because they have higher risks of tilting,
perforating the IVC, or fracturing and migrating to vital
organs. Plaintiffs further allege that Bard failed to warn
patients and physicians about these higher risks. Defendants
dispute these allegations, contending that Bard filters are
safe and effective, that their complication rates are low and
comparable to those of other IVC filters, and that the
medical community is aware of the risks associated with IVC
noted, more than 4, 000 cases have been filed in this MDL
since its inception in 2015. By late 2017, the parties
completed all common discovery and filed dispositive and
Daubert motions. The Court has ruled on
Defendants' motion for summary judgment on preemption
grounds, decided more than a dozen Daubert motions,
and resolved summary judgment motions in four bellwether
cases. Two bellwether cases were tried earlier this year. One
other bellwether case is set for trial this month, and two
more in 2019. No. cases have settled.
Suggestion of Remand.
power to remand MDL cases rests solely with the Panel. 28
U.S.C. § 1407(a); see Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 28 (1998). The
Panel typically relies on the transferee court to suggest
when it should order remand. J.P.M.L. Rule 10.1(b)(i);
see In re Motor Fuel Temperature Sales Practices
Litig., No. 07-MD-1840-KHV, 2012 WL 1963350, at *1 (D.
Kan. May 30, 2012). Indeed, the Panel “is reluctant to
order a remand absent the suggestion of the transferee
judge[.]” J.P.M.L. Rule 10.3(a); see In re Regions
Morgan Keegan Sec, Derivative & ERISA Litig, No.
2:09-md-2009-SHM, 2013 WL 5614285, at *2 (W.D. Tenn. Feb. 28,
2013). The transferee court may suggest to the Panel that
cases be remanded where they are “ready for trial, or .
. . would no longer benefit from inclusion in the coordinated
or consolidated pretrial proceedings.” In re
Multi-Piece Rim Prods. Liab. Litig., 464 F.Supp. 969,
975 (J.P.M.L. 1979); see In re TMJ Implants Prods. Liab.
Litig., 872 F.Supp. 1019, 1038 (D. Minn. 1995).
Ten Mature Cases Should Be Remanded.
October 2015, the parties identified 13 cases that were
sufficiently advanced to be considered for remand. Doc. 174
at 7-9; see Doc. 363 at 2-3. These cases were
designated as “mature cases” in the Court's
initial orders. Docs. 519 at 3, 914 at 2. Although the mature
cases were more advanced than other cases in the MDL, the
parties agreed that they should not be remanded immediately,
but instead should remain part of the MDL as possible
bellwether cases. Doc. 249 at 6.
February 2016, the Court directed the parties to confer and
identify the specific discovery, motion practice, and other
litigation steps needed for the mature cases. Doc. 519 at 3.
The purpose was to remand these cases as soon as reasonably
possible, rather than postponing their disposition until the
end of the MDL proceeding. Id.
April 2016, the parties agreed that 3 of the 13 cases should
no longer be deemed mature and instead should be treated like
all other cases in this MDL. Doc. 1319 at 2. The remaining 10
cases, listed below, continue to be designated as mature
• Tillman v. C. R. Bard, Inc., No. 3:13-cv-0222
• Ocasio v. C. R. Bard, Inc., No. 8:13-cv-01962
• Cason v. C. R. Bard, Inc., No. 1:12-cv-01288
• Coker v. C. R. Bard, Inc., No. 1:13-cv-00515
• Rivera (McClarty) v. C. R. Bard, Inc., No.
4:14-cv-13627 (E.D. Michigan)
• Ebert v. C. R. Bard, Inc., No. 5:12-cv-01253
• Keen v. C. R. Bard, Inc., No. 5:13-cv-05361
• Smith v. C. R. Bard, Inc., No. 1:13-cv-00633
• Fox v. C. R. Bard, Inc., No. 3:14-cv-00133
• Henley v. C. R. Bard, Inc., No. 2:14-cv-00059
August 2016, the parties stipulated that remand of the mature
cases should await completion of expert discovery because
such discovery may be relevant in trials of the mature cases.
Doc. 3214 at 3. The Court agreed, concluding that general
expert disclosure and discovery, and any related
Daubert motions, should be handled in this MDL. Doc.
4311 at 2. The Court further concluded that case-specific
discovery in the mature cases should await their remand.
Id; see Doc. 8871 at 5.
the second bellwether trial earlier this year, the Court
directed the parties to file memoranda addressing the
appropriate time for remand of the mature cases. Doc. 11320
at 3. Defendants argued that the cases should be remanded in
2019 after completion of the remaining bellwether trials.
Doc. 11550 at 5-6. Plaintiffs argued that the cases should be
remanded now because retaining the cases in the MDL will
provide no additional benefits and there is no reason to
delay. Doc. 11553 at 7.
Court agrees with Plaintiffs. All common fact and expert
discovery in this MDL have been completed, and the Court has
ruled on Daubert motions and Defendants' summary
judgment motion on preemption. The mature cases are nearly
ready for trial and would no longer benefit from inclusion in
this MDL. The remaining case-specific issues in the mature
cases are best left to the transferor courts to resolve. The
Court therefore suggests that the Panel remand the 10 mature
cases listed on Schedule A to the transferor courts for
further proceedings. See In re TMJ Implants, 872
F.Supp. at 1038 (suggesting remand of cases that no longer
benefited from inclusion in consolidated pretrial
The MDL Proceedings.
summary of the MDL proceedings to date is provided below to
assist the transferor courts on remand, if ordered by the
Panel. Case management orders, discovery orders, and other
significant rulings are listed in Exhibit 1. The status of
the remaining case-specific discovery and other pretrial
issues for the mature cases, and the estimated time needed to
resolve such issues and make the cases ready for trial, as
proposed by the parties, are listed in Exhibit 2.
Case Management Orders.
primary orders governing pretrial management of this MDL are
a series of case management orders (“CMOs”),
along with certain amendments. To date, the Court has issued
36 CMOs. These orders are discussed below and can be found on
the Court's website at
Lead and Liaison Counsel.
1, entered October 30, 2015, appointed Co-Lead/Liaison
Counsel for Plaintiffs (“Lead Counsel”) to manage
the litigation on behalf of Plaintiffs, and set out the
responsibilities of Lead Counsel. Doc. 248. Plaintiffs'
Lead Counsel has changed since the inception of the MDL. Mr.
Ramon Lopez, of Lopez McHugh, LLP, in Newport Beach,
California, and Mr. Mark O'Connor, of Gallagher &
Kennedy, P.A., in Phoenix, Arizona, are now Lead Counsel for
Plaintiffs. Doc. 5285. Mr. Richard North of Nelson Mullins
Riley & Scarborough, LLP, in Atlanta, Georgia, is
Defendants' Lead Counsel.
Plaintiffs' Steering Committee and Common Benefits
1 directed the selection and appointment of a Plaintiffs'
Steering Committee (“PSC”) to assist in the
coordination of pretrial activities and trial planning.
Plaintiffs' Lead Counsel and the PSC together form the
Plaintiffs' Leadership Counsel (“PLC”). The
PSC acts on behalf of, and in consultation with,
Plaintiffs' Lead Counsel in the management of the
litigation. The PLC assists all Plaintiffs in the MDL by
overseeing discovery, appearing in court, attending status
conferences, and preparing motions and responses regarding
case-wide discovery matters. CMO No. 1 has been amended to
select and appoint a Plaintiffs' Executive Committee
(“PEC”) to assist Lead Counsel in the
administration, organization, and strategic decisions of the
PLC. Doc. 4016. The configuration of the PSC has changed
during the course of the litigation. See Docs. 248,
6, entered December 18, 2015, set forth rules, policies,
procedures, and guidelines for fees and expenses incurred by
attorneys acting for the common benefit of all MDL
Plaintiffs. Doc. 372.
Master and Short-Form Pleadings.
2, entered October 30, 2015, required the creation of a
master complaint, a master answer, and templates of
short-form complaints and answers. Doc. 249 at 6. The master
complaint and answer were filed December 12, 2015. Docs. 364,
366. They are the operative pleadings for most of the cases
in this MDL. The master complaint serves as a long-form
complaint giving notice, pursuant to Rule 8, of the
allegations that the MDL Plaintiffs assert generally. Doc.
364. The master complaint asserts 17 claims and seeks both
compensatory and punitive damages. Id. ¶¶
allegations are contained in individual short-form complaints
(Doc. 303-2) or certain complaints served on Defendants
before the filing of the master complaint. Plaintiffs also
provide Defendants with profile forms and fact sheets that
describe their individual conditions and claims. Doc. 365
(CMO No. 5, as amended by Doc. 927).
mature cases listed on Schedule A are not governed by the
master complaint, but continue to be governed by the
complaints and answers (including any amended pleadings)
filed in the various transferor courts before the cases were
transferred to this MDL. Doc. 363 (CMO No. 4, as amended by
Doc. 1485). The parties were not required to exchange profile
forms in the mature cases. Doc. 365.
the inception of the MDL, the Court has held regular status
conferences with Lead Counsel for the parties to discuss
issues related to the litigation. The initial case management
conference was held in October 2015. Doc. 246. Deadlines were
set for, among other things, the filing of master and
short-form pleadings, profile forms, a proposed protective
order (including Rule 502 provisions), a proposed protocol
governing the production of electronically stored information
(“ESI”), as well as deadlines to complete
first-phase MDL discovery and address privilege log issues.
Doc. 249 (CMO No. 2). Thereafter, the Court held periodic
status conferences to ensure that the parties were on task
and to address routine discovery issues and disputes. In
addition to the status conferences, the Court conducted
telephonic hearings to address time-sensitive issues, as well
as numerous additional conferences to consider various
matters such as hearings on dispositive motions and general
case management issues.
General Fact Discovery.
to the establishment of this MDL, Plaintiffs had conducted
substantial common discovery against Bard (including in the
mature cases) concerning all aspects of Bard IVC filters,
including the design, testing, manufacturing, marketing,
labeling, and post-market surveillance of these devices. Bard
produced numerous documents and ESI, responded to thousands
of written discovery requests, and more than 80 corporate
witness depositions were taken. The pre-MDL general fact
discovery was made available by Bard to all Plaintiffs in the
MDL was formed to centralize pretrial proceedings and
complete all common fact and expert discovery concerning Bard
IVC filters. Doc. 1. CMO No. 8 established a procedure
concerning re-deposing witnesses in the MDL. Doc. 519. CMO
No. 14 established deposition protocols generally. Doc. 2239.
The Court allowed additional depositions of a handful of
corporate witnesses that had been previously deposed, as well
as numerous depositions of other Bard corporate witnesses,
including several Rule 30(b)(6) depositions. Docs. 3685,
4311. CMO No. 9 governed the production of ESI and hard-copy
documents. Doc. 1259.
in the MDL was separated into multiple phases. The parties
completed the first phase of MDL discovery in early 2016.
Doc. 519. First-phase MDL discovery included production of
documents related to an FDA inspection and warning letter to
Bard, an updated production of complaint and adverse event
files, and an updated version of Bard's complaint
database relating to IVC filters. Doc. 249. Plaintiffs also
conducted a Rule 30(b)(6) deposition concerning the FDA
inspection and warning letter, and a deposition of corporate
witness Kay Fuller.
parties completed the second phase of MDL fact discovery in
February 2017. CMO No. 8 set deadlines for the second phase,
which included all common fact and expert issues in the MDL,
but not case-specific issues to be resolved after remand.
Docs. 249, 519. Second-phase discovery included extensive
additional discovery related to Bard's system
architecture for ESI, Bard's ESI collection efforts, ESI
relating to Bard's IVC filters, and Bard's national
and regional sales and marketing practices. Plaintiffs also
deposed two corporate witnesses in connection with Kay
Fuller's allegations that a submission to the FDA
regarding the Recovery filter did not bear her original
signature. Doc. 1319 (CMO No. 10). Plaintiffs deposed
additional corporate witnesses concerning the FDA inspection
and warning letter. Id.
also produced discovery regarding the sales and marketing
materials related to the Simon Nitinol filter
(“SNF”), documents comparing filter performance
and failure rates to the SNF, and internal and regulatory
communications relating to the SNF. Docs. 1319, 10489. The
Court denied Plaintiffs' request to obtain ESI discovery
from Bard's overseas operations. Doc. 3398. The Court
denied Defendants' request to obtain discovery of
communications between Plaintiffs' counsel and NBC
related to NBC news stories about the products at issue in
this litigation, and third-party financing that may be in
place with respect to Plaintiffs in this MDL. Docs. 3313,
3314. Plaintiffs were required to produce communications
between Plaintiffs and the FDA related to the FDA warning
letter, but the Court denied Defendants' request to
depose Plaintiffs' counsel regarding these
communications. Docs. 3312, 4339. Bard also produced punitive
damages discovery, and Plaintiffs conducted a Rule 30(b)(6)
deposition related to Bard's net worth.
common fact discovery in these cases has now been completed.
Thus, transferor courts need not be concerned with
facilitating general fact discovery on remand.
parties did not conduct case-specific fact discovery for the
10 mature cases during the MDL proceedings, but instead
conducted such discovery in these cases prior to their
transfer to the MDL. The Court has concluded that any
additional case-specific discovery in the mature cases should
await their remand. Docs. 3214 at 3, 8871 at 5. The status of
the remaining case-specific discovery for the mature cases is
listed in Exhibit 2.