United States District Court, D. Arizona
IN RE Bard IVC Filters Products Liability Litigation,
SUGGESTION OF REMAND AND TRANSFER ORDER
G. Campbell Senior United States District Judge
multidistrict litigation proceeding (“MDL”)
involves 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 they are defective and
have caused Plaintiffs to suffer serious injury or death.
was transferred to this Court in August 2015 when 22 cases
had been filed. Doc. 1. More than 8, 000 cases had been filed
when the MDL closed to new cases on May 31, 2019. Docs.
18079, 18128. Thousands of cases pending in the MDL have
settled in principle or are near settlement. See
Docs. 16343, 19445, 19798-1, -2. The remaining cases no
longer benefit from centralized proceedings and are subject
to remand or transfer.
cases listed on Schedule A, which were transferred to this
MDL by the United States Judicial Panel for Multidistrict
Litigation (the “Panel”), should be remanded to
the transferor courts pursuant to 28 U.S.C. § 1407(a).
The Court therefore provides this Suggestion of Remand to the
Panel. The cases listed on Schedule B, which were
directly filed in this MDL, will be transferred to
appropriate districts pursuant to 28 U.S.C. § 1404(a).
assist the courts that receive these cases, this order will
describe events that have taken place in the MDL. A copy of
this order, along with the case files and materials, will be
available to courts after remand or transfer.
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 remand should be ordered. 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 remand when cases 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).
The Panel Should Remand the Cases Listed on Schedule
primary purposes of this MDL - coordinated pretrial discovery
and resolution of common issues - have been fulfilled. All
common fact and expert discovery has been completed. The
Court has also resolved many Daubert motions and
Defendants' summary judgment motion based on preemption,
as well as other summary judgment and in limine motions in
the bellwether cases. Three bellwether trials were held, and
the parties prepared for a fourth that settled on the eve of
trial. As noted, a settlement process is in place.
cases listed on Schedule A are not likely to settle soon and
no longer benefit from centralized proceedings. The remaining
case-specific issues in these cases are best left to the
transferor courts to resolve. The Court therefore suggests
that the Panel remand the cases 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 consolidated pretrial
raise venue and personal jurisdiction objections in cases in
which the transferor district is not where the filter at
issue was implanted. See Docs. 19445 at 4-6,
19445-4, 19798-3. The Court may not resolve venue issues in
cases transferred by the Panel under § 1407(a). See
Lexecon, 523 U.S. at 39; Manual for Complex
Litigation, Fourth, § 20.132 n.666. And for reasons
explained below, the Court finds that personal jurisdiction
issues are best resolved by the transferor courts.
Defendants' right to challenge venue and personal
jurisdiction upon remand is preserved.
Transfer Under 28 U.S.C. § 1404(a).
1404(a) provides that “[f]or the convenience of parties
and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or
division where it might have been brought or to any district
or division to which all parties have consented.”
The Direct-Filed Cases Listed on Schedule B Will Be
MDL cases were transferred to the Court by the Panel.
Pursuant to Case Management Order No. 4 (“CMO
4”), many cases were filed directly in the MDL through
use of a short form complaint. Doc. 363 at 3 (as amended by
Docs. 1108, 1485). Plaintiffs were required to identify in
the short form complaint the district where venue would be
proper absent direct filing in the MDL. See Id. at
7. CMO 4 provides that, upon the MDL's closure, each
pending direct-filed case shall be transferred pursuant
§ 1404(a) to the district identified in the short form
complaint. Id. at 3.
Cases Where the Parties Agree to Venue.
parties have provided a list of the direct-filed cases in
which they agree to the venue identified in the short form
complaint. Doc. 19798-4. The parties also agree that certain
other cases should be transferred to the venue where the
plaintiff was implanted with the filter and not to the venue
identified in the short form complaint. Doc. 19798-5.
Pursuant to § 1404(a), the Court will transfer these
cases to the agreed-upon districts. See Lifehouse
Holdings, LLC v. Certain Underwriters at Lloyd's
London, No. 13-CV-02161-LHK, 2013 WL 5754381, at *1
(N.D. Cal. Oct. 23, 2013) (transferring case where the
“second prong of Section 1404 - consent - [was]
satisfied”); In re Biomet M2a Magnum Hip Implant
Prods. Liab. Litig., No. 3:12-MD-2391, 2018 WL 7683307,
at *1 (N.D. Ind. Sept. 6, 2018) (transferring cases under
§ 1404(a) where they would “no longer benefit from
centralized proceedings and the remaining case-specific
issues are best left to decision by the courts that will try
Cases Where the Parties Disagree on Venue or
provides that, prior to transfer, Defendants may object to
the district specified in the short form complaint based on
venue or personal jurisdiction. Id. at 4. Defendants
have identified cases where they intend to raise venue or
jurisdiction objections to Plaintiffs' chosen forums.
See Docs. 19445 at 6, 19454-1, 19798-5. Defendants
do not oppose transfer of these cases to the forums chosen by
Plaintiffs, but seek to preserve their right to object to
venue and personal jurisdiction upon transfer. See
Doc. 19445 at 3, 6; Doc 19798-5 at 1.
oppose this approach, asserting that the resolution of venue
and jurisdictional challenges after transfer would be
inefficient. Doc. 19445 at 3. But more than a dozen cases
involve potential venue or personal jurisdictional
challenges. See Doc. 19798-5. Resolving such
disputes generally involves consideration of case-specific
factors, including the law for the forum. See Jones v.
GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)
(“A motion to transfer venue under § 1404(a)
requires the court to weigh multiple factors in its
determination whether transfer is appropriate in a particular
case.”); Calder v. Jones, 465 U.S. 783, 788,
(1984) (in judging the minimum contacts required for personal
jurisdiction, “a court properly focuses on ‘the
relationship among the defendant, the forum, and the
litigation'”) (citation omitted). The best approach
is to transfer the cases to Plaintiffs' chosen forum and
allow the receiving courts to address any potential venue and
personal jurisdictional issues. Defendants' right to
object to venue and personal jurisdiction upon transfer is
assert that, depending on the various state savings statutes,
dismissal for lack of personal jurisdiction after transfer
could result in timely-filed cases being barred from
re-filing in an appropriate district based on the statute of
limitations. Doc. 19445 at 3-4. But “[o]nce a district
court determines that it lacks personal jurisdiction, it is
within its discretion to transfer the case to a court of
proper jurisdiction and venue if it finds that it is within
the interests of justice to do so.” Romero v. Cajun
Stabilizing Boats, Inc., No. CIV.A.G 05 483, 2006 WL
367871, at *4 (S.D. Tex. Feb. 14, 2006) (citing 28 U.S.C.
§§ 1406(a), 1631); see Dumitrescu v. DynCorp
Int'l, LLC, 257 F.Supp.3d 13, 20 (D.D.C. 2017);
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962).
Plaintiffs are free to argue in the receiving courts that the
interests of justice favor transfer rather than dismissal of
any timely-filed case that would be barred from re-filing if
dismissed. See In re Ski Train Fire In Kaprun, Austria on
Nov. 11, 2000, 257 F.Supp.2d 717, 734-35 (S.D.N.Y. 2003)
(“If this case is dismissed, . . . plaintiffs will be
unable to establish jurisdiction in Colorado because they
will be barred from refiling in Colorado by the two year
statute of limitations. To deny plaintiffs the opportunity to
sue . . . defendants in a jurisdiction where they could have
originally brought suit . . . solely because they selected
the wrong forum at the outset of this case would be grossly
unfair.”); see also Manieri v. Layirrison, No.
CIV. A. 98-501, 1998 WL 458186, at *3 n.3 (E.D. La. July 31,
1998) (noting that “[t]he curative effects of
§§ 1404(a), 1406(a) and 1631 were intended to apply
only in those circumstances where the action would have been
timely filed in the transferee court at the time of filing in
the transferor court”).
The MDL Proceedings.
summary of the MDL proceedings to date is provided below to
assist courts on remand, if ordered by the Panel, and courts
receiving transfers under § 1404(a). CMOs, discovery
orders, and other significant rulings are listed in Exhibit
1. The status of the remaining case-specific discovery and
other pretrial issues for these cases, and the estimated time
needed to resolve such issues and make the cases ready for
trial, will be determined by the parties and reported to the
district courts on remand or transfer.
Plaintiffs' Claims and the Pleadings.
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's
retrievable IVC filters - the Recovery, G2, G2X, Eclipse,
Meridian, and Denali. These filters 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
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
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
master complaint gives notice, pursuant to Rule 8, of the
allegations that Plaintiffs assert generally. The master
complaint asserts seventeen state law claims: manufacturing
defect (Counts I and V); failure to warn (Counts II and VII);
design defect (Counts III and IV); failure to recall (Count
VI); misrepresentation (Counts VIII and XII); negligence per
se (Count IX); breach of warranty (Counts X and XI);
concealment (Count XIII); consumer fraud and deceptive trade
practices (Count XIV); loss of consortium (Count XV); and
wrongful death and survival (Counts XVI and XVII). Doc. 364
at 34-63. Plaintiffs seek both compensatory and punitive
damages. Id. at 63.
allegations are contained in individual short-form complaints
or certain complaints served on Defendants before the filing
of the master complaint. See Docs. 249, 363, 365.
Plaintiffs also provided Defendants with profile forms and
fact sheets that describe their individual claims and
conditions. See Doc. 365.
Case Management Orders.
primary orders governing pretrial management of this MDL are
a series of CMOs, along with certain amendments. To date, the
Court has issued 45 CMOs. These orders are discussed below
and can be found on this District's website at
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 Beus Gilbert PLLC,
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'
Plaintiffs' Steering Committee and Common Benefits
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
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 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,
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. In May 2019, the Court increased the
common benefit attorneys' fees assessment from 6% to 8%,
but declined to increase the 3% assessment for costs. Doc.
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. 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 telephone
hearings to address time-sensitive issues, as well as
numerous additional conferences to consider various matters
such as dispositive motions and general case management
General Fact Discovery.
to the establishment of this MDL, Plaintiffs' counsel had
conducted substantial common discovery against Bard
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 and 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 all pretrial proceedings and
complete all common fact and expert discovery concerning Bard
IVC filters. Doc. 1. CMO 8 established a procedure concerning
re-deposing witnesses in the MDL. Doc. 519. CMO 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 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 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 or
transfer. 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 10). Plaintiffs deposed additional
corporate witnesses concerning the FDA inspections and
warning letter. Id.
also produced discovery regarding the sales and marketing
materials related to the 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 discover
communications between Plaintiffs' counsel and NBC news
related to stories about the products at issue in this
litigation, and third-party financing that may be in place
with respect to MDL Plaintiffs. 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.
Defendants 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
except for preservation depositions for certain witnesses who
will not be traveling to testify live at the trials of
remanded and transferred cases. The parties are engaged in
the meet and confer process as to these depositions and shall
complete them by September 1, 2019. See Doc. 16343
(CMO 43). Thus, courts receiving these cases need not be
concerned with facilitating general fact discovery on remand
governed initial case-specific discovery and required the
parties to exchange abbreviated profile forms. Doc. 365 (as
amended by Doc. 927). Plaintiffs were required to provide
Defendants with a Plaintiff profile form (“PPF”)
that described their individual conditions and claims.
Id. at 5-9. Upon receipt of a substantially complete
PPF, Defendants were required to provide the individual
plaintiff with a Defendants' profile form
(“DPF”) that disclosed information and documents
concerning Defendants' contacts and relationship with the
plaintiff's physicians, tracking and reporting of the
plaintiff's claims, and certain manufacturing related
information for the plaintiff's filter. Id. at
12-14. Completed profile forms were considered interrogatory
answers under Rule 33 or responses to requests for production
under Rule 34, and were governed by the standards applicable
to written discovery under Rules 26 through 37. Id.
at 2-3. CMO 5 also set deadlines and procedures for resolving
any purported deficiencies with the parties' profile
forms, and for dismissal of cases that did not provide
substantially completed profile forms. Id. at
discovery was conducted in a group of forty-eight cases
(“Group 1”) selected for consideration in the
bellwether trial process from the pool of cases filed and
properly served on Defendants in the MDL as of April 1, 2016
(“Initial Plaintiff Pool”). Docs. 1662, 3214,
4311 (CMOs 11, 15, 19). Plaintiffs in Group 1 were required
to provide Defendants with a Plaintiff fact sheet
(“PFS”) that described their individual
conditions and claims in greater detail, and provided
detailed disclosures concerning their individual background,
medical history, insurance, fact witnesses, prior claims, and
relevant documents and records authorizations. Docs. 1153-1,
1662 at 3.
receipt of a PFS, Defendants were required to provide the
individual plaintiff with a Defendants fact sheet
(“DFS”) that disclosed in greater detail
information concerning Defendants' contacts and
relationship with the plaintiff, plaintiff's physicians,
or anyone on behalf of the plaintiff, Defendants'
tracking and reporting of the plaintiff's claims, sales
and marketing information for the implanting facility,
manufacturing information for the plaintiff's filter, and
other relevant documents. Docs. 1153-2, 1662 at 3. Completed
fact sheets were considered interrogatory answers under Rule
33 or responses to requests for production under Rule 34, and
were governed by the standards applicable to written
discovery under Rules 26 through 37. Doc. 1662 at 3. CMO 11
set deadlines and procedures for resolving any purported
deficiencies with the parties' fact sheets. Id.
at 2, 4-5. CMO 12 governed records discovery for Group 1.
Doc. 1663. The parties agreed to use The Marker Group to
collect medical, insurance, Medicare, Medicaid, prescription,
Social Security, workers' compensation, and employment
records for individual plaintiffs from third-parties
designated as custodians for such records in the PFS.
Id. at 1.
Group 1, twelve cases were selected for further consideration
as bellwether cases (“Discovery Group 1”). Docs.
1662, 3685, 4311 (CMOs 11, 18, 19). CMO 20 set deadlines for
preliminary case-specific discovery in that group. Doc. 4335.
Pursuant to the protocols set in CMOs 14 and 21, the parties
were permitted to depose Plaintiffs, a spouse or significant
family member of Plaintiffs, the implanting physician, an
additional treating physician, and either a Bard sales
representative or supervisor. Docs. 2239, 4866 at 1-2. From
Discovery Group 1, six Plaintiffs were selected for ...