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In re Bard IVC Filters Products Liability Litigation

United States District Court, D. Arizona

May 31, 2019

IN RE Bard IVC Filters Products Liability Litigation,



         The 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.

         I. CMO 6 - Common Benefit Funds and Assessments.

         CMO 6 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.

         CMO 6 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.

         II. The PSC's Motion to Increase the Assessment Percentages.

         The PSC 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.

         A. The Litigation's Duration and Scope.

         Given 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 25-26.

         The PSC 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 not unreasonable.

         The 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 transferred.

         The PSC 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 common benefit.

         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.

         B. Reliance on the Current ...

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