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 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. The remaining cases no longer benefit from
August 20, 2019, the Court suggested the remand of 35 cases
that were transferred to this MDL by the United States
Judicial Panel for Multidistrict Litigation (the
“Panel”). Doc. 19899 at 2-3, 34-35. The Court
transferred more than 500 cases that were directly filed in
the MDL to appropriate districts. Id. at 3-6, 36-59.
updated reports on the settlement status of cases, the
parties identify more than 300 cases that are no longer
likely to settle. Docs. 20061, 20623. An additional 100 cases
that were recently served on Defendants are also unlikely to
settle. Doc. 20209. These cases are now subject to remand or
case listed on Schedule A should be remanded to the
transferor court pursuant to 28 U.S.C. § 1407(a).
See Doc. 20061-1. 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). See Docs. 20061-2, 20209-2, 20623 at
2. To 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. The two
cases listed on Schedule C will be unconsolidated from the
MDL and will remain in the District of Arizona.
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 is appropriate. See J.P.M.L. Rule
10.1(b)(i); 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 a case is
“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 Case 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 jury trials were held,
and the parties prepared for a fourth that settled on the eve
case listed on Schedule A is not likely to settle soon and no
longer benefits from centralized proceedings. The remaining
case-specific issues are best left to the transferor court to
resolve. The Court therefore suggests that the Panel remand
the case on Schedule A to the transferor court - the Southern
District of Indiana - for further proceedings. See
Doc. 20061-1; In re TMJ Implants, 872 F.Supp. at
1038 (suggesting remand of cases that no longer benefited
from consolidated pretrial proceedings).
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 to the
district identified in the short form complaint. Id.
to § 1404(a), the Court will transfer the cases listed
on Schedule B to the districts identified in the short form
complaints. See Doc. 20061-2; 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 the cases”).
Defendants' right to challenge venue and personal
jurisdiction upon transfer is preserved. See Doc.
19899 at 4-6.
The MDL Proceedings.
summary of the MDL proceedings 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 in individual cases should be addressed
by the courts receiving the cases 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 contains 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.
remand or transfer, individual Plaintiffs likely will be
represented by their own counsel - the attorney or attorneys
who filed their original complaint. Plaintiffs' Lead
Counsel, the PSC, the PLC, and the PEC were tasked with
managing the MDL for Plaintiffs, not the individual cases on
remand or transfer.
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
to the establishment of this MDL, Plaintiffs' counsel had
conducted substantial discovery against Bard concerning all
aspects of Bard IVC filters, including the design, testing,
manufacturing, marketing, labeling, and post-market
surveillance of the 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 fact discovery was made available by Bard
to all Plaintiffs in the MDL.
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 phases. The parties completed
the first phase of MDL discovery in early 2016. Doc. 519. The
first phase 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 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 also 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 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 a meet and
confer process as to these depositions and shall complete
them by December 1, 2019. See Doc. 16343 (CMO 42, as
amended by Doc. 19959). Thus, courts receiving these cases
need not be concerned with facilitating general fact
discovery on remand or transfer.
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 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
Plaintiff's physicians, tracking and reporting of
Plaintiff's claims, and certain manufacturing related
information for 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 48 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 Plaintiff, Plaintiff's physicians, or
anyone on behalf of Plaintiff, Defendants' tracking and
reporting of Plaintiff's claims, sales and marketing
information for the implanting facility, manufacturing
information for 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 each Plaintiff, his or her spouse or
a significant family member, 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 potential
bellwether trials and further case-specific discovery
(“Bellwether Group 1”). Docs. 1662, 3685, 4311,
5770, 11659 (CMOs 11, 18, 19, 23, and 34).
for the 48 cases in Group 1, the parties did not conduct
case-specific fact discovery for the cases listed on
Schedules A and B during the MDL proceedings, other than
exchanging abbreviated profile forms. The Court concluded
that any additional case-specific discovery in these cases
should await their remand or transfer. Thus, courts receiving
these cases should set a schedule for the completion of
governed expert disclosures and discovery. Doc. 519. The
parties designated general experts in all MDL cases and
case-specific experts in individual bellwether cases. General
expert discovery closed July 14, 2017. Doc. 3685 (CMO 18).
The parties did not conduct case-specific expert discovery
for the cases listed on Schedules A and B during the MDL
proceedings. The Court concluded that case-specific expert
discovery in these cases should await their remand ...