United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
CASE MANAGEMENT ORDER NO. 42
David
G. Campbell Senior United States District Judge
(Tinlin
Trial, SNF Cases, Duplicative Cases, Settlement Procedures
and Remand or Transfer)
The
Court held a case management conference with the parties on
March 18, 2019. Doc. 16093. The conference concerned issues
raised in the parties' joint status report (Doc. 15948)
and other matters. On the basis of the conference, the Court
enters the following orders:
1.
Tinlin Trial (including change of pretrial conference
date).
a.
Plaintiffs' counsel provided information suggesting that
Mrs. Tinlin will not be able to travel to Phoenix for trial
and asked that she be permitted to testify and observe
portions of the trial remotely. Doc. 15693. Defendants do not
oppose the request, but ask that various procedures be put in
place to ensure that no prejudice results from her remote
testimony and observation. Doc. 15954. Plaintiffs are
directed to work with the Court's technology staff and
the federal district court in Green Bay, Wisconsin, to
arrange for Mrs. Tinlin's video testimony during trial.
Assuming adequate technical arrangements can be made, the
Court further concludes that (1) Mrs. Tinlin will be alone in
a room with a videographer and courtroom deputy clerk at the
time of her testimony, although counsel for both sides may be
in the courthouse to deal with any issues that arise; (2) the
parties shall confer about exhibits to be used during her
testimony, and a complete set of marked exhibits will be
provided for the clerk to place in front of Mrs. Tinlin
during her testimony; (3) Plaintiffs shall pay any costs
associated with the remote testimony; (4) the parties shall
confer and propose a jury instruction that can be read during
trial to explain Mrs. Tinlin's absence from trial and the
reasons for her remote testimony; and (5) Mrs. Tinlin may
observe other portions of the trial from the remote location,
but will not appear via video while observing the
proceedings. With these safeguards in place, the Court finds
that Mrs. Tinlin's remote testimony satisfies the high
standard in Federal Rule of Civil Procedure 43(a) for remote
testimony during trial. Plaintiffs' motion (Doc. 15693)
is granted.
b. Due
to scheduling issues, the date for the final pretrial
conference will be changed from April 30 to April 29, 2019.
The conference will begin at 10:00 a.m. on April 29,
2019.
c.
Plaintiffs have filed a motion to seal their unredacted
summary judgment materials. Doc. 15695; see Docs.
15071, 15072 (sealed lodged proposed documents). The motion
fails to address the applicable compelling reasons standard.
See Kamakana v. City & Cty. of Honolulu, 447
F.3d 1172, 1180 (9th Cir. 2006). The Court denied a similar
motion filed by Defendants. See Docs. 15072, 15175.
Plaintiffs' motion to seal (Doc. 15695) is denied
without prejudice. The parties shall have until
March 29, 2019, to file new motions to seal that address the
relevant legal standard.
2.
Simon Nitinol Filter (“SNF”) Cases.
Case
Management Order No. 41 directed Plaintiffs' lead counsel
to contact and confer with attorneys representing SNF clients
in this MDL proceeding, to inform these attorneys that the
Court is requiring them to organize into a Plaintiffs'
steering committee for SNF cases and to assist in the
management and efficient litigation of those cases, to inform
them that they must confer with defense counsel regarding an
appropriate schedule and procedures for preparing the cases
for trial, including the five topics identified in the
parties' previous joint status report (Doc. 14870 at 3),
and to be prepared at the case management conference on March
18, 2019, to put in place the leadership structure for the
SNF cases. Doc. 15176 at 2. Once lead plaintiffs' counsel
were identified for the SNF cases, the Court would require
them to reach agreement on the establishment of a common fund
for the SNF cases, which the Court presumes would be similar
to the common fund established for the rest of this MDL.
Id.; see Doc. 372 (CMO No. 6). The
Court's intent was to complete discovery and motion
practice on the SNF cases in the most efficient manner
possible and, if necessary, hold one or two bellwether trials
on the SNF cases. Id. at 2-3.
Plaintiffs'
lead counsel report that they have contacted all known
attorneys who represent Plaintiffs in SNF cases transferred
to or filed in this MDL, asking them to take leadership roles
in the SNF cases. Doc. 15948 at 2. That communication was
followed by further communications with some who expressed
interest in taking on a leadership or committee position. No.
lawyer has stepped forward to lead the SNF cases. One
attorney expressed a willingness to serve on a steering
committee, but is not willing to serve as lead counsel.
See Id. Plaintiffs' lead counsel encouraged her
to attend the hearing set for March 18, 2019, but she did
not. Plaintiffs' lead counsel have also identified a few
additional attorneys who are willing to serve on a steering
committee, but are similarly reluctant to take on a lead
counsel role.
Without
Plaintiffs' lawyers who are willing to assume leadership
of the SNF cases, those cases cannot be resolved
expeditiously, the Court cannot manage the SNF-case docket in
this MDL, and Defendants will be prejudiced. The Court will
afford the SNF-case attorneys one more opportunity to
organize a steering committee, designate lead counsel, confer
with defense counsel, and undertake litigation of the SNF
cases. See Doc. 15176 at 2-3. If those attorneys do
not step forward and assume responsibility for litigating
their cases, the Court will dismiss the SNF cases for lack of
prosecution and failure to comply with the Court's
orders. See Doc. 15948 at 3; Fed.R.Civ.P. 41(b);
Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988)
(“In determining whether to dismiss an action for lack
of prosecution, the district court is required to weigh
several factors: (1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases on their
merits and (5) the availability of less drastic
sanctions.”) (quotation marks and citation omitted).
Attorneys
in SNF cases shall have until May 1, 2019,
to (a) organize into a Plaintiffs' steering committee for
SNF cases; (b) designate lead counsel for such cases; (c)
confer with defense counsel regarding an appropriate schedule
and procedures for preparing the cases for trial, including
the five topics identified in the parties' joint status
report (Doc. 14870 at 3); and (d) file a memorandum
identifying the attorneys recommended for the steering
committee and lead counsel, explain why they are qualified
and able to litigate the SNF cases, and setting forth the
proposed schedule for this litigation. The Court will then
schedule a hearing to appoint a steering committee and lead
counsel and set a schedule for completing discovery and
motion practice in the SNF cases.
Attorneys
with SNF cases are warned that the Court will dismiss those
cases for lack of prosecution if they do not comply fully
with this order. See Fed. R. Civ. P. 41(b). Existing
lead counsel are directed, within seven days of this order,
to share this order and the Court's directive with all
attorneys who have SNF cases in this MDL.
3.
Dupli ...