United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
Plaintiffs Steering Committee (“PSC”) moves to
modify Case Management Order No. 6 (“CMO 6 ”) to
increase the common benefit assessments. Doc. 16932 at 3-6.
Defendants and counsel for many individual plaintiffs oppose
the proposed increases. Docs. 17367, 17387-17404, 17433,
17555. A hearing was held on May 29, 2019. Doc. 17966. For
reasons stated below, the Court will grant the motion in part
and deny it in part.
CMO 6 - Common Benefit Funds and Assessments.
was issued early in this MDL to provide for the fair and
equitable sharing among plaintiffs and their counsel of the
burden of litigating this complex case. Doc. 372 at 1. CMO 6
provides that compensable common benefit work includes
meetings and conference calls, court appearances, discovery,
document review, expert retention and development, legal
research, motion practice, bellwether cases and trials,
settlement efforts, and all other work that advances this
litigation to conclusion. Id. at 1-2, 7-8. The time
spent performing common benefit work must be authorized by
Plaintiffs' Co-Lead Counsel and recorded accurately and
contemporaneously. Id. at 8-9.
provides for the establishment of two interest-bearing
accounts to receive and disburse common benefit funds: the
“Bard IVC Filters Fee Fund” and the “Bard
IVC Filters Expense Fund.” Id. at 9. The Court
has granted the PSC's request to establish these accounts
and has appointed Citibank, N.A., as escrow agent.
See Docs. 17777, 16932 at 2-3. The accounts will be
funded through assessments on the gross monetary recoveries
received by plaintiffs and their counsel in this MDL.
Id. at 9. The current total assessment amount is 8%,
which includes 6% for attorneys' fees and 2% for
expenses. Id. at 10.
The PSC's Motion to Increase the Assessment
proposes to increase the attorneys' fees assessment to 9%
and the expense assessment to 5%. Doc. 16932 at 3. The PSC
contends that the duration, scope, size, and cost of this
litigation have outstripped the PSC's expectations when
it proposed the initial assessment percentages. Id.
The PSC further contends that the current percentages are
conservative and MDL courts routinely approve increases as
litigation develops. Id. at 4-5.
The Litigation's Duration and Scope.
that Bard had been litigating IVC filter cases for years when
the MDL was formed in late 2015, the PSC asserts that
“trials stretching into 2019 seemed unlikely.”
Id. at 4. The Court cannot conclude that bellwether
trials were unforeseeable when CMO 6 was entered. Such trials
are commonplace in mass tort MDLs and were discussed at the
first case management conference. See Doc. 174 at
estimated, however, that all bellwether trials would conclude
by April 2017. Id. at 25. The final bellwether trial
ultimately was scheduled for May 2019 - more than two years
later than the PSC expected. Moreover, the parties did not
complete all common discovery and file dispositive motions
until late 2017, nearly a year longer than the PSC expected.
Id. at 24-25. Although the overall duration of this
litigation is not long for a mass tort MDL, the PSC's
initial expectation that the litigation would end sooner was
common benefit work has included millions of pages of
document review, substantial ESI discovery, dozens of
depositions, many experts and Daubert challenges, multiple
summary judgment motions, numerous motions in limine, three
three-week bellwether trials, post-trial motions and appeals,
and substantial settlement efforts. Defendants'
preemption motion involved more discovery and was more
complex than the PSC anticipated. Several trial preservation
depositions will yet be taken, and the PSC has agreed to
prepare trial packets for lawyers whose cases are remanded or
states that while it was prepared for protracted litigation,
it did not fully anticipate the scope of this MDL when it
proposed the initial assessment percentages. Doc. 17687 at 3.
The Court finds there was significant unanticipated common
benefit work that justifies an increase in the attorneys'
fees assessment percentage. The Court will increase the
attorneys' fees assessment from 6% to 8%. The Court will
not grant the requested increase to 9% because the Court does
not agree with the PSC's argument that this case will
include a significant amount of future work by the PSC.
During oral argument, Mr. Lopez noted that some transferor
courts may allow the parties to take updated depositions of
Bard or other witnesses and that members of the PSC may be
asked to consult with lawyers who try cases in transferor
courts. Even if true, the Court does not view these as
responsibilities of the PSC that should be charged to the
Court notes that the 8% assessment for attorneys' fees
represents a holdback, not a determination of the final
amount to be disbursed out of the common benefit fee fund.
See Doc. 372 at 10.
Reliance on the Current ...