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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

November 8, 2018

IN RE: Bard IVC Filters Products Liability Litigation,

          CASE MANAGEMENT ORDER NO. 40 (MULKEY BELLWETHER TRIAL)

          David G. Campbell Senior United States District Judge.

         Plaintiffs have filed a motion to remove the Mulkey case from the bellwether trial schedule. Doc. 12990. The motion is fully briefed and no party has requested oral argument. Docs. 13118, 13170. The Court will grant the motion.

         I. Background.

         In April 2017, the parties submitted memoranda proposing specific cases for bellwether trials from a pool of more than 40 cases. Docs. 5652, 5706. Both sides selected the Mulkey case. Docs. 5652 at 3, 5706 at 1. Based on the parties' submissions and oral arguments at the ninth case management conference, the Court selected Mulkey and four other cases for bellwether trials: Booker, Jones, Kruse, and Hyde. Doc. 5770 at 1. The Court stated that it would select a sixth bellwether case after two bellwether trials had been completed. Id. at 2.

         The Booker case was tried in March 2018 and resulted in a $3.6 million jury verdict in the plaintiff's favor. Docs. 10595, 10596. The Jones case was tried two months later and resulted in a defense verdict. Doc. 11350.

         Following the close of the Jones trial, the Court concluded that the order of the next three bellwether trials should be Kruse, Hyde, and Mulkey. Doc. 11659 at 1. The Court scheduled Kruse for September 2018, Hyde for November 2018, and Mulkey for February 2019. Id. at 1-2. The Court selected Tinlin, a Recovery case, for the sixth bellwether trial in May 2019. Id. at 4.

         The Court subsequently granted summary judgment in favor of Defendants in the Kruse case. Doc. 12202. The parties agreed that Hyde could be moved to the September 2018 bellwether trial slot in lieu of Kruse. Doc. 11871 at 1. The Hyde trial resulted in another defense verdict. Doc. 12891.

         Due to certain health issues experienced by Ms. Mulkey and the fact that discovery in Tinlin was ongoing, the Court determined that Mulkey should be tried in February 2019 and Tinlin three months later. Docs. 12061, 12853, 12971. The Court also determined that a sixth bellwether trial would not be necessary. Doc. 12853 at 1. The summary judgment granted in Kruse had resolved a sixth case.

         Plaintiffs seek to remove Mulkey from the bellwether trial schedule, arguing that another trial involving an Eclipse filter would be redundant and a waste of resources. Doc. 12990 at 4-6. Defendants oppose the motion. Doc. 13118.

         II. Discussion.

         The primary purposes of this MDL - common discovery and ruling on common issues - have been accomplished. The parties requested that the Court hold bellwether trials to provide insight into how their claims and defenses would be received by juries, with the hope that a global settlement could be achieved before the cases are remanded. See In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997); Manual for Complex Litigation, Fourth § 22.315 (Federal Judicial Center 2004). The four bellwether cases resolved to date - Booker, Jones, Kruse, and Hyde - have served this purpose.

         Booker involved a G2 filter that had experienced multiple failures, with a fractured strut migrating to the plaintiff's heart. See Doc. 8873 at 2. The jury found in favor of the plaintiff on the failure to warn and punitive damages claims, awarding $1.6 million in compensatory and $2 million in punitive damages. Docs. 10595, 10596. Plaintiffs have stated that this verdict provides sufficient information regarding the estimated value of G2 cases involving fractures and serious injuries (Doc. 13117 at 49), and neither side proposes trying another G2 bellwether case.

         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 ...


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