UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

IN RE: DAVOL, INC./C.R. BARD, 

INC., POLYPROPYLENE HERNIA 

MESH PRODUCTS LIABILITY 

LITIGATION 

This document relates to: 

ALL CASES 

 

Case No.: 2:18-md-2846 

JUDGE EDMUND A. SARGUS, JR. 

Magistrate Judge Kimberly A. Jolson 

DEFENDANTS C. R. BARD, INC. AND DAVOL INC.’S MOTION FOR

A DOCKET CONTROL ORDER

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 1 of 28 PAGEID #: 7753
- i - 

TABLE OF CONTENTS 

Page 

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

A. A Docket Control Order Requiring Proof Of Compensable Injury Would Be 

Appropriate And Useful In Culling Meritless Claims ........................................................ 3

B. A Docket Control Order Requiring Counsel Certifications As To Basic 

Requirements Would Be Appropriate And Useful In Advancing The MDL’s 

Purpose .............................................................................................................................. 10

C. Docket Control Orders Do Not Require Prior Settlement ................................................ 16

D. This MDL Is Ripe For A Lone Pine Docket Control Order ............................................. 18

CONCLUSION ............................................................................................................................. 20

 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 2 of 28 PAGEID #: 7754
 - ii - 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

In re 3M Combat Arms Earplug Prods. Liab. Litig., 

MDL No. 2885, May 6, 2022 ..............................................................................................6, 19 

Acuna v. Brown & Root, Inc., 

200 F.3d 335 (5th Cir. 2000) ...................................................................................................19 

Albright v. Upjohn Co., 

788 F.2d 1217 (6th Cir. 1986) .................................................................................................12 

Augustine v. Adams, 

88 F. Supp. 2d 1166 (D. Kan. 2000) ..................................................................................13, 14 

In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., 

687 F. Appx. 210 (3d Cir. Apr. 19, 2017) .................................................................................3 

In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., 

MDL No. 1871, 2010 WL 4720335 (E.D. Pa. Nov. 15, 2010) ................................................18 

Baker v. Chevron USA, Inc., 

Case No. 1:05-CV-227, 2007 U.S. Dist. LEXIS 6601 (S.D. Ohio Jan. 30, 

2007) ....................................................................................................................................9, 18 

Burns v. Universal Crop. Protection Alliance, 

NO: 4:07CV00535 SWW, 2007 U.S. Dist. LEXIS 71716 (E.D. Ark. Sept. 25, 

2007) ........................................................................................................................................12 

In re Cook Med., Inc., IVC Filters Mkt'g, Sales Pract. & Prod. Liab. Litig., 

MDL No. 2570, Mar. 29, 2022 ................................................................................................12 

In re Cook Med., Inc., IVC Filters Mkt'g, Sales Pract. & Prod. Liab. Litig., 

MDL No. 2570, Oct. 26, 2020 ...........................................................................................12, 15 

In re Cook Medical, Inc. Pelvic Repair Sys. Prof. Liab. Litig., 

2018 WL 4698953 (S.D. W. Va. Sept. 28, 2018) ......................................................................5 

Doggett v. Perez, 

225 F.R.D. 255 (E.D. Wash. 2004) ..........................................................................................13 

In re Ethicon Physiomesh Flexible Composite Hernia Mesh Prods. Liab. Litig., 

Civil Action No. 1:17-MD-02782-RWS, Practice and Procedure Order No. 

26, ECF No. 743 (N.D. Ga. May 13, 2021) .........................................................................6, 19 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 3 of 28 PAGEID #: 7755
 - iii - 

In re Fosamax Prods. Liab. Litig., 

No. 06 MD 1789 (JFK), 2012 U.S. Dist. LEXIS 166734 (S.D.N.Y. Nov. 20, 

2012) ................................................................................................................................ passim

Freeman v. Wyeth, 

764 F.3d 806 (8th Cir. 2014) .....................................................................................................5 

Hamer v. Livanova Deutschland GmbH, 

994 F.3d 173 (3d Cir. 2021).......................................................................................................9 

In re Physiomesh Mesh Litig., Master Case No. ATL-L-2122-18, Case 

Management Order No. 20 (N.J. Sup. Ct. L. Div. Atlantic Cty. May 13, 2021) .......................6 

Johns v. C. R. Bard, Inc., et al., 

Case No. 2:18-cv-01509-EAS-KAJ, Trial Tr., Aug. 16, 2021 ..................................................7 

Johnson v. A. W. Chesterton Co., 

18 F.3d 1362 (7th Cir. 1994) ...................................................................................................13 

Jones v. Continental Corp., 

789 F.2d 1225 (6th Cir. 1986) .................................................................................................15 

Lore v. Lone Pine Corp., 

No. L-, 33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Jan. 1, 1986) ..........................3 

McManaway v. KBR, Inc., 

265 F.R.D. 384 (S.D. Ind. 2009) ............................................................................................4, 9 

Montgomery v. Wyeth, 

580 F.3d 455 (6th Cir. 2009) ...................................................................................................13 

In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 

460 F.3d 1217 (9th Cir. 2006) ...................................................................................................5 

Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 

465 F.3d 642 (6th Cir. 2006) ...................................................................................................16 

In re Ruben, 

825 F.2d 977 (6th Cir. 1987) .......................................................................................14, 15, 16 

Stewart v. The Proctor & Gamble Co., 

Case No. C-1-06-374, 2006 U.S. Dist. LEXIS 102384 (S.D. Ohio July 21, 

2006) ........................................................................................................................................14 

In re Testosterone Replacement Therapy (“TRT”) Products Liability Litigation, 

MDL No. 2545, Master Docket Case No. 1:14-cv-01748, 2018 U.S. Dist. 

LEXIS 205125 (N.D. Ill. June 11, 2018) .................................................................4, 16, 17, 19 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 4 of 28 PAGEID #: 7756
 - iv - 

Trujillo v. Ametek, Inc., 

Case No. 3:15-cv-1394-GPC-BGS, 2016 U.S. Dist. LEXIS 84834 (S.D. Cal. 

June 28, 2016) ..........................................................................................................................19 

In re Vioxx Prods. Liab. Litig., 

2:05-md-01657-EEF-DEK, ECF No. 12626 (E.D. La. Oct. 11, 2007) ...................................17 

In re Vioxx Prods. Liab. Litig., 

MDL NO. 1657, 557 F. Supp. 2d 741 (E.D. La. 2008) ...........................................5, 17, 18, 19 

In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 

MDL No. 2592, 2:19-cv-14669, 2021 U.S. Dist. LEXIS 25296 (E.D. La. Feb. 

10, 2021) ....................................................................................................................3, 4, 16, 19 

In re Zimmer Nexgen Knee Implant Products Liability Litigation, 

MDL NO. 2272, Master Docket Case No. 1:11-cv-05468, 2016 WL 3281032 

(N.D. Ill. June 10, 2016) ............................................................................................................5 

In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., 

MDL No. 2848, No. 18-md-2848, 2022 U.S. Dist. LEXIS 57935 (E.D. Pa. 

Mar. 30, 2022)............................................................................................................4, 9, 16, 19 

Statutes 

28 U.S.C. § 1927 ............................................................................................................................15 

Rules 

Fed. R. Civ. P. 1 ...............................................................................................................................5 

Fed. R.Civ. P. 16 ............................................................................................................................10 

Fed. R. Civ. P. 16(c)(2) ..................................................................................................................10 

Fed. R. Civ. P. 16(c)(2)(A) ............................................................................................................10 

Fed. R. Civ. P. 16(c)(2)(B) ............................................................................................................10 

Fed. R. Civ. P. 16(c)(2)(F) .............................................................................................................10 

Fed. R. Civ. P. 16(c)(2)(L) .............................................................................................................10 

Fed. R. Civ. P. 16(c)(2)(P) .............................................................................................................10 

Fed. R. Civ. P. 26(b) ........................................................................................................................9 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 5 of 28 PAGEID #: 7757
 - v - 

Other Authorities 

Engstrom & Espeland, Lone Pine Orders: a Critical Examination and Empirical 

Analysis, 168 Penn. L. Rev. Online 91, 93 (2020).....................................................................4 

https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actio

ns_Pending-May-16-2022.pdf .............................................................................................7, 17 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 6 of 28 PAGEID #: 7758
 - 1 - 

INTRODUCTION 

Defendants C. R. Bard, Inc., and Davol Inc. (collectively, “Bard”) hereby move for a 

docket control order to address the significant portion of now-pending cases that appear on their 

face to involve no actionable injury or do not belong in this proceeding. After more than threeand-a-half years and two bellwether trials, the MDL has seen considerable progress. Despite the 

maturity of this litigation, Plaintiffs continue to file cases at a high rate, such that the total number 

of pending cases likely will far exceed the current total of more than 16,800. The newer cases are, 

on average, weaker than the body of cases that were pending in 2018 and early 2019 when CMOs 

were entered defining the scope of case-specific discovery. It is now apparent that there are a 

considerable number of pending cases with one or more of the following issues: 1) the plaintiff is 

suing over a Bard device that is still in-place; 2) the plaintiff is suing over an incidental finding 

discovered during an unrelated procedure; 3) the plaintiff is suing over an alleged injury that 

produced no physical symptoms; 4) the plaintiff is suing over a device not made by Bard or 

otherwise outside of the scope of this MDL; 5) the plaintiff’s claims are plainly barred by 

applicable statutes of limitations and/or repose; 6) the plaintiff has multiple cases arising out of 

the same operative facts pending in this MDL; and 7) the plaintiff’s claims have been resolved in 

other litigation or are subject to a prior dismissal with prejudice. 

The continuously increasing percentages of such cases stand as impediments to this MDL 

fulfilling its function. The MDL now needs an efficient mechanism to root out the cases that have 

no merit, so that the litigation can focus on the remaining cases. If steps are not taken now to 

ensure that basic requirements are met for all pending cases, then the subsequent course of this 

MDL will likely be prolonged and more complicated. 

Based on the current CMOs, it is too easy for a plaintiff to continue with their lawsuit in 

the MDL without legally cognizable claims, with time-barred or resolved claims, or with claims 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 7 of 28 PAGEID #: 7759
 - 2 - 

that do not belong in this MDL. Such a plaintiff, assuming his/her case was not included in the 

bellwether trial process, could remain on the docket for years without having to do more than serve 

the filed short-form complaint (“SFC”) and serve a Plaintiff Profile Form (“PPF”). See ECF Nos. 

57, 61 & 109. Bard, meanwhile, has limited ability to identify cases that should be subject to 

dismissal and even less ability to pursue dismissal at this time. This is not conducive to the longterm prospects for the MDL and encourages the filing of cases with little or no vetting of the merits. 

Bard seeks a docket control order requiring plaintiffs to confirm that plaintiffs have 

appropriate bona fides for inclusion in the MDL. A personal injury lawsuit requires proof of a 

legally cognizable injury. Before filing a case in this MDL, the lawyer signing the complaint 

should have already identified medical records and/or generated expert proof that the subject Bard 

device caused physical injury symptoms and/or limitations, and/or that a complication with the 

device led to surgical intervention. Providing fundamental proof of a legally cognizable injury 

should be a simple task at this stage, unless the case does not belong here because suit was filed 

without such an injury. 

Similarly, before bringing a case in this MDL, each plaintiff’s counsel should have already 

obtained medical records making it clear that the plaintiff was implanted with one of the twentyfour Bard polypropylene hernia devices at issue in this MDL. ECF No. 67. In addition, before 

filing any case, plaintiff’s counsel should have assessed whether the claims asserted are timebarred, have been resolved, have been the subject of a prior court order, or have already been 

asserted in another pending case. Requiring plaintiff’s counsel in each case here to confirm that 

assessments on these issues have been conducted, with the expectation of voluntary dismissal of 

extraneous cases and claims as appropriate and the possibility of cost-shifting in the event of later 

involuntary dismissals, does not impose a significant burden on plaintiffs or their counsel. It 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 8 of 28 PAGEID #: 7760
 - 3 - 

would, however, advance the litigation considerably. Implementing staggered deadlines for 

plaintiffs to take these simple steps for all pending cases and requiring them for all future cases 

would go a long way toward allowing this MDL to focus on cases that should be pending and will 

need to be litigated on their merits. 

These are not burdensome or outlier requirements, but routine matters championed by 

many MDL judges (and commentators alike). They level-set the litigation such that all parties can 

evaluate their positions and work with the Court with confidence to move the litigation forward, 

knowing that the docket is not loaded down with cases that have no injury, where the product is 

still in place, where the claims are plainly untimely, and/or do not involve one of the subject 

products for the MDL. An increasing number of MDLs, particularly in MDLs concerning medical 

products and MDLs with a high number of pending cases, have imposed requirements on all 

pending cases to help the overall management of the litigation. Such requirements have also been 

imposed in MDLs in the same general posture as this MDL, with considerable generic discovery 

completed, some bellwether trials completed, and enough information on the pending cases to 

understand the recurring distinctions and issues. The time has come to impose such requirements 

here to aid in the administration of the large number of cases pending and still being filed. 

ARGUMENT 

A. A Docket Control Order Requiring Proof Of Compensable Injury Would Be 

Appropriate And Useful In Culling Meritless Claims 

Docket control orders, often referred to as Lone Pine orders based on Lore v. Lone Pine 

Corp., No. L-, 33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Jan. 1, 1986), are “routine” 

and within the “wide latitude” afforded MDL courts in managing litigation. In re Avandia 

Marketing, Sales Practices & Prods. Liab. Litig., 687 F. Appx. 210, 214 (3d Cir. Apr. 19, 2017); 

see also In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, 2:19-cv-14669, 2021 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 9 of 28 PAGEID #: 7761
 - 4 - 

U.S. Dist. LEXIS 25296, at *7-*8 (E.D. La. Feb. 10, 2021) (“Lone Pine orders have been routinely 

used by the courts to manage mass tort cases.”). Indeed, one study found that federal and state 

trial courts issued at least 97 Lone Pine orders from 1986 to 2019. See Engstrom & Espeland, 

Lone Pine Orders: a Critical Examination and Empirical Analysis, 168 Penn. L. Rev. Online 91, 

93 (2020), attached hereto as Exhibit 1. “Although no federal rule expressly authorizes the use of 

Lone Pine orders, federal courts have interpreted Rule 16 of the Federal Rules of Civil Procedure 

to give the authority to enter Lone Pine orders in complex litigation.” In re Fosamax Prods. Liab. 

Litig., No. 06 MD 1789 (JFK), 2012 U.S. Dist. LEXIS 166734, at *5 (S.D.N.Y. Nov. 20, 2012) 

(citation omitted); see also McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009) (“Lone 

Pine orders are permitted by Rule [16]. . . which provides that a court may take several actions 

during a pretrial conference, including ‘adopting special procedures for managing potentially 

difficult or protracted actions that may involve complex issues, multiple parties, difficult legal 

questions, or unusual proof problems.’”) (citations omitted). 

The particular utility of docket control orders in MDL proceedings like this has been 

recognized: “A district court, administrating a multidistrict case, faces unique challenges not 

present when administrating cases on a routine docket.” In re Zostavax (Zoster Vaccine Live) 

Prods. Liab. Litig., MDL No. 2848, No. 18-md-2848, 2022 U.S. Dist. LEXIS 57935, at *5 (E.D. 

Pa. Mar. 30, 2022). Lone Pine orders are essential tools in helping MDL courts weed out 

nonmeritorious claims and may “require plaintiffs to furnish specific evidence like proof of a 

medical diagnosis.” Id. (quotations and citation omitted); see, e.g., In re Xarelto, 2021 U.S. Dist. 

LEXIS 25296, at *8-*9 (noting that plaintiffs transferred into MDL were required to produce a 

Rule 26(a)(2)-compliant expert report on medical causation); In re Testosterone Replacement 

Therapy (“TRT”) Products Liability Litigation, MDL No. 2545, Master Docket Case No. 1:14-

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 10 of 28 PAGEID #: 7762
 - 5 - 

cv-01748, 2018 U.S. Dist. LEXIS 205125, at *421-*425 (N.D. Ill. June 11, 2018) (requiring each 

remaining and new plaintiff to produce all medical and pharmacy records, and an expert report 

within 90 days); In re Zimmer Nexgen Knee Implant Products Liability Litigation, MDL NO. 2272, 

Master Docket Case No. 1:11-cv-05468, 2016 WL 3281032, at*1-*2 (N.D. Ill. June 10, 2016) 

(entering Lone Pine order requiring each plaintiff in bellwether trial track in medical device MDL 

to identify particular injury claims and provide a signed expert declaration regarding causation in 

the form attached to the order); In re Vioxx Prods. Liab. Litig., MDL NO. 1657, 557 F. Supp. 2d 

741, 742-43, 744-45 (E.D. La. 2008) (denying motion to suspend Lone Pine order requiring 

plaintiffs to produce expert report confirming injury and “showing . . . some kind of scientific basis 

that Vioxx could cause the alleged injury”). 

As the judge overseeing the largest current MDL proceeding noted recently in connection 

with the dismissal of more than 20,000 plaintiffs for failure to submit a specific form or report by 

the deadline established in a docket control order: 

An MDL judge bears the “enormous” task of “mov[ing] thousands of cases toward 

resolution on the merits while at the same time respecting their individuality.” In 

re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 

2006). To carry out this task in an organized and efficient manner, an MDL court 

must define and strictly adhere to case management rules. See id. at 1232 (“[T]he 

district judge must establish schedules with firm cutoff dates if the coordinated 

cases are to move in a diligent fashion toward resolution by motion, settlement, or 

trial.”); see also Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure 

“should be construed and administered to secure the just, speedy, and inexpensive 

determination of every action and proceeding”). Pretrial orders—and the parties’ 

compliance with those orders and their deadlines— “are the engine that drives 

disposition on the merits.” Id. at 1232. “A [court’s] willingness to resort to 

sanctions in the event of noncompliance can ensure that that the engine remains in 

tune, resulting in better administration of the vehicle of multidistrict litigation.” In 

re Cook Medical, Inc. Pelvic Repair Sys. Prof. Liab. Litig., 2018 WL 4698953, at 

*2 (S.D. W. Va. Sept. 28, 2018) (citing Freeman v. Wyeth, 764 F.3d 806, 810 (8th 

Cir. 2014) (“The MDL judge must be given ‘greater discretion’ to create and 

enforce deadlines in order to administrate the litigation effectively. This 

necessarily includes the power to dismiss cases where litigants do not follow the 

court’s orders.”)). 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 11 of 28 PAGEID #: 7763
 - 6 - 

Order, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885, May 6, 2022 (ECF 

No. 3076), attached hereto as Exhibit 2. 

The time has come for this Court to enter a docket control order to help ensure that 

unsupported cases can be weeded out in an efficient manner. The first part of Bard’s proposal 

would require plaintiffs to produce proof of a medical diagnosis of compensable injury in order to 

proceed.1

 See Proposed Case Management Order, attached hereto as Exhibit 3. Acceptable proof 

could include an affidavit from a qualified, licensed surgeon attesting that he or she opines to a 

reasonable degree of medical certainty that a causal connection exists between the plaintiff’s 

alleged symptomatic injuries and the Bard hernia device in question. This is fundamental 

information, which plaintiffs would otherwise be required to produce at a much later stage. Such 

proof would help to identify the plaintiffs who fit into one or more of three categories set out 

above: 1) the plaintiff is suing over a Bard device that is still in-place; 2) the plaintiff is suing over 

an incidental finding discovered during an unrelated procedure; and 3) that plaintiff is suing over 

an alleged injury that produced no physical symptoms. Such cases have no place here. 

As the Court may recall, at the beginning of the MDL, plaintiffs’ leadership stated that they 

“anticipate[d] that a large marjority [of the cases in the MDL] will be a revision or surgical 

intervention as a result of being injured; however, there are instances where the device cannot be 

safely removed and, in that instance, there would not be.” CMC Tr., Sept. 5, 2018, ECF No. 13, 

at 42:8-11. Or, as paraphrased by the Court, “it’s either explanted or [there is] a reason that it can’t 

 

1

 The first part of the Proposed Case Management Order is modeled on the stipulated Lone Pine orders entered in the 

Physiomesh MDL and state court coordinated proceedings as models, both of which require plaintiffs to serve casespecific expert reports concerning the specific causation of the plaintiffs’ alleged injuries. See, e.g., In re Ethicon 

Physiomesh Flexible Composite Hernia Mesh Prods. Liab. Litig., Civil Action No. 1:17-MD-02782-RWS, Practice 

and Procedure Order No. 26, ECF No. 743 (N.D. Ga. May 13, 2021), attached as Exhibit 4; In re Physiomesh Mesh 

Litig., Master Case No. ATL-L-2122-18, Case Management Order No. 20 (N.J. Sup. Ct. L. Div. Atlantic Cty. May 

13, 2021), attached as Exhibit 5. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 12 of 28 PAGEID #: 7764
 - 7 - 

be explanted.” Id. at 42:12-13. More than three-and-a-half years later, the number of total cases 

in the MDL has swelled to more than 16,800, third-most among active MDLs.2

 Without medical 

records on all pending cases, an exact count is impossible, but it appears that a significant 

percentage of the pending cases are cases where the only device at issue is still implanted, that is 

“product-in-place” cases (“PIP”). 

It also appears that the percentage of PIP cases has increased over time as more law firms 

have filed cases. In fact, in a sampling of 300 of the 709 new cases filed between September 1, 

2021, and March 8, 2022, for which Bard has received Plaintiff Profile Forms, at least 34% appear 

to be cases in which the device at issue remains in place with or without any post-implant surgical 

intervention. The number of PIP cases and the trend of an increasing percentage of PIP cases over 

time limit the ability of the parties to evaluate the remaining inventory of filed and unfiled cases, 

despite the clear information provided from verdicts in two bellwether trials on the two most 

prevalent devices at issue in cases in this MDL. Requiring proof from an apparent PIP case of a 

medical diagnosis of compensable injury will be an effective way to determine which cases do not 

merit further time or effort from the parties or Court. 

The same need exists as to the many pending plaintiffs who have had their Bard hernia 

mesh device removed, but for reasons that had nothing to do with any injury or symptoms allegedly 

caused by the device. As the Johns trial and full defense verdict showed, those cases are of 

negligible value and highly questionable merit in terms of any legally cognizable injury. In Johns, 

the claimed injury of asymptomatic omental adhesions was discovered as an incidental finding 

during a second surgery for a recurrent diastasis recti (not a hernia) and the Ventralight ST was 

removed to facilitate the repair (rather than because of the adhesions). See Johns v. C. R. Bard, 

 

2

 https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-May-16-2022.pdf. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 13 of 28 PAGEID #: 7765
 - 8 - 

Inc., et al., Case No. 2:18-cv-01509-EAS-KAJ, Trial Tr., Aug. 16, 2021, ECF No. 565, at 143:1-

13 (explanting surgeon testifying that he did not attribute plaintiff’s pain at the time of his second 

surgery to his adhesions and that he did not even discover them until he operated) & 145:2-10 

(confirming that the pain plaintiff experienced was from his recurrent diastasis). 

The point here is not to relitigate Johns, but to draw attention to the fact that there are 

“explant” cases where it should be evident from the records that the removal was only incidental, 

and thus more akin to a PIP case than a case in which the plaintiff underwent a removal surgery 

specifically because of a doctor-perceived complication connected to a Bard hernia mesh device. 

Requiring plaintiffs to produce documents they should already have or can easily obtain will allow 

for the differentiation between cases where there may be a compensable injury and those where, 

despite an explant procedure, there is no compensable injury. 

Similarly, for plaintiffs who have had no post-implant surgical intervention, it may be 

important to distinguish between those suing without any evidence of physical symptoms or limits 

(e.g., claiming only emotional distress or the risk of future injury) and those who may have 

compensable injuries despite not having had surgical intervention. The latter category may match 

with the stated expectation from plaintiffs’ leadership supra that “there are instances where the 

device cannot be safely removed.” CMC Tr., Sept. 5, 2018, ECF No. 13, at 42:8-11. A plaintiff 

with a medical diagnosis of a compensable physical injury that his or her physicians have 

determined cannot be addressed through a safe surgical intervention should have proof on these 

issues available to produce. Likewise, any plaintiff who claims to have a compensable injury—

implicit in bringing a product liability suit in the first place—should also be prepared to provide 

proof of a medical diagnosis of a compensable physical injury. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 14 of 28 PAGEID #: 7766
 - 9 - 

These requirements for current and future cases would further “[t]he basic purpose of a 

Lone Pine order [] to identify and cull potentially meritless claims.” Baker v. Chevron USA, Inc., 

Case No. 1:05-CV-227, 2007 U.S. Dist. LEXIS 6601, at *2 (S.D. Ohio Jan. 30, 2007). This 

identification and culling would help to “boost efficiency” for the MDL by “ensur[ing] that only 

plaintiffs with meritorious cases are compensated” in the event of a settlement or “ensur[ing] that 

the home districts receive only viable cases” in the event of remand. See In re Fosamax, 2012 

U.S. Dist. LEXIS 166734, at *7; see also In re Zostavax, 2022 U.S. Dist. LEXIS 57935, at *7 (“It 

is now time for plaintiffs to come forward with the Laboratory Reports or other documentation 

Merck requests to enable the court to weed out non-meritorious claims and move along these 1,700 

or more cases toward a final resolution.”); McManaway, 265 F.R.D. at 388-89 (“[I]n order to 

promote efficiency in the resolution of the case, an order on Plaintiffs’ Fed. R. Civ. P. 26(b) expert 

disclosures should issue directing Plaintiffs to provide expert disclosures in the three areas of 

inquiry defendants requested (exposure, injury, and causation).”). As the MDL court in the In re

Zostavax litigation stated recently: 

While a district court must be careful not to stifle meritorious claims, it may impose 

a Lone Pine order so as to “require plaintiffs to furnish specific evidence like proof 

of a medical diagnosis, with the goal of winnowing non-compliant cases from the 

MDL.” 

In re Zostavax, 2022 U.S. Dist. LEXIS 57935, at *5 (quoting Hamer v. Livanova Deutschland 

GmbH, 994 F.3d 173, 178 (3d Cir. 2021)). Providing the parties and the Court with an effective 

method to cull out the claims of uninjured plaintiffs will advance the needs of the MDL and 

potentially discourage future plaintiffs from bringing unsupported cases. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 15 of 28 PAGEID #: 7767
 - 10 - 

B. A Docket Control Order Requiring Counsel Certifications As To Basic 

Requirements Would Be Appropriate And Useful In Advancing The MDL’s 

Purpose 

In addition to seeking production of proof of medical diagnosis of compensable injury, 

Bard seeks production and certification from plaintiff’s counsel as to four other basic issues, 

discussed supra, each of which should have been considered before bringing suit in this MDL. 

See Proposed Case Management Order, Exhibit 3. Unfortunately, based on information that Bard 

has at this time, there are a relatively large number of cases that should be dismissed or transferred 

because of one or more of the following reasons: 1) the plaintiff is suing over a device not made 

by Bard or otherwise outside of the scope of this MDL; 2) the plaintiff’s claims are plainly barred 

by applicable statutes of limitations and/or repose; 3) the plaintiff has multiple cases that arise 

from the same operative facts pending in this MDL; and 4) the plaintiff’s claims have been resolved 

in other litigation or are subject to a prior dismissal with prejudice. By entering a docket control 

order requiring plaintiffs and their counsel to take certain basic steps, the parties and the Court will 

be in a better position to weed out cases than if Bard had to file individual motions after the 

completion of costly case-specific discovery. 

This is well within the Court’s authority under Fed. R. Civ. P. 16(c)(2), as well as its 

inherent authority described above. That provision authorizes the Court to take action on, among 

other matters, “eliminating frivolous claims or defenses, “amending the pleadings,” “controlling 

and scheduling discovery,” “adopting special procedures for managing potentially difficult or 

protracted actions that may involve complex issues, multiple parties, difficult legal questions, or 

unusual proof problems, and “facilitating in other ways the just, speedy, and inexpensive 

disposition of the action.” Fed. R. Civ. P. 16(c)(2)(A), (B), (F), (L) & (P); see also Fed. R. Civ. 

P. 16 adv. comm. note (1983) (referencing the “court’s power to identify the litigable issues,” the 

goal of “promoting efficiency and conserving judicial resources by identifying the real issues prior 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 16 of 28 PAGEID #: 7768
 - 11 - 

to trial,” and that “[t]here is no reason to require that [eliminating frivolous claims or defenses] 

this await a formal motion for summary judgment”). The provisions that Bard seeks here fall 

squarely within what the Court, particularly in its MDL function, has been authorized to do. 

This MDL was established to address common issues in connection with product liability 

cases against Bard and Davol concerning one or more of their twenty-four polypropylene-based 

hernia mesh devices (hereinafter, “covered devices”). ECF Nos. 1 & 67. While there may be 

cases with claims asserted as other Bard devices or devices of other manufacturers, those cases 

belong in this MDL only if claims are also being asserted against Bard as to a covered device.3 A 

case that does not assert claims against Bard as to a covered device should be dismissed or 

transferred depending on what other claims are asserted. Even a case that purports to concern a 

covered device will be subject to dismissal if there is not basic proof that the plaintiff was in fact 

implanted with the device over which she or he is suing. Requiring that all current and future 

plaintiffs produce records from the implanting surgeons or hospitals identifying the specific 

manufacturer and model of each hernia device implanted in the plaintiff will aid in culling out 

cases that do not belong in this MDL.4 An attendant requirement that plaintiff’s counsel assess 

the claims asserted, the defendants, and available product identification evidence to determine if a 

supported claim against Bard as to a covered product can be made would also be appropriate. 

Cases that do not belong in this MDL can transferred to another district court if claims concerning 

non-covered devices have been asserted or dismissed if not. 

 

3

 The JPML has assigned a number of multi-manufacturer cases to this MDL even when another MDL exists 

concerning the other manufacturer’s device at issue. This has been the case regardless of which party tags the case 

first. 

4

 The PPF currently required after filing a case does not have this specific requirement, as it asks each plaintiff to 

produce the medical records he or she has obtained related to the asserted claims. ECF No. 57. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 17 of 28 PAGEID #: 7769
 - 12 - 

Requirements that plaintiffs produce proof of product identification, purchase, or exposure 

(as in environmental torts) are some of the most common provisions in Lone Pine orders, docket 

control orders, and case management orders in MDLs, coordinated proceedings, and multi-plaintiff 

cases. Lone Pine itself concerned proof of exposure. Numerous MDLs concerning over-thecounter products have required the early production of product identification information. See, 

e.g., Burns v. Universal Crop. Protection Alliance, NO: 4:07CV00535 SWW, 2007 U.S. Dist. 

LEXIS 71716, at *7-*8, *10-*11 (E.D. Ark. Sept. 25, 2007) (entering Lone Pine order requiring 

plaintiffs to provides affidavits establishing product identification). The dismissal of noncompliant cases in the 3M Combat Arms MDL discussed above began with the requirement that 

plaintiffs produce certain records relating to the timing of their military service, which served as a 

proxy for use of the product at issue. Requiring a counsel certification of consideration of basic 

issues concerning which defendants are being sued over which products is appropriate because it 

is something each counsel should have done before bringing suit. See Albright v. Upjohn Co., 788 

F.2d 1217, 1219-21 (6th Cir. 1986) (reversing district court’s denial of Rule 11 sanctions against 

plaintiff’s attorney for “insufficient” pre-filing investigation that would have revealed a lack of 

evidence that defendant was not manufacturer of allegedly defective antibiotic taken by plaintiff). 

In Cook IVC Filter MDL, the judge has required similar attorney certifications on issues that 

should have been assessed before bringing suit. CMO No. 28, In re Cook Med., Inc., IVC Filters 

Mkt’g, Sales Pract. & Prod. Liab. Litig., MDL No. 2570, Oct. 26, 2020, attached hereto as Exhibit 

6; CMO No. 30, In re Cook Med., Inc., IVC Filters Mkt’g, Sales Pract. & Prod. Liab. Litig., MDL 

No. 2570, Mar. 29, 2022, attached hereto as Exhibit 7. 

The first of these Cook IV Filter orders required plaintiff’s counsel to assess applicable 

statute of limitations and statutes of repose and voluntarily dismiss time-barred cases. Cook CMO 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 18 of 28 PAGEID #: 7770
 - 13 - 

No. 28, Exhibit 6. In it, the MDL judge specified that plaintiff’s counsel’s “reasonable screening 

inquiry requires, at a minimum, communicating with the plaintiff, reviewing the plaintiff’s 

pleadings, and reviewing the plaintiff’s [form discovery responses].” Id. at 1-2. While this Court 

has not yet issued any orders on statute of limitations or repose, these are issues that counsel should 

have assessed up front in every case. See Johnson v. A. W. Chesterton Co., 18 F.3d 1362, 1365 

(7th Cir. 1994) (finding that sanctions were properly imposed on plaintiffs’ attorney for failing to 

make reasonable pre-filing investigation that would have revealed claim was barred by statute of 

limitations); Doggett v. Perez, 225 F.R.D. 255, 257 (E.D. Wash. 2004) (imposing sanctions under 

Rule 11 where “John Doggett’s claims were legally frivolous when filed because they were clearly 

time-barred”); Augustine v. Adams, 88 F. Supp. 2d 1166, 1173-74 (D. Kan. 2000) (sanctioning 

attorney under Rule 11 for filing complaint where he should have realized that plaintiff’s claims 

were barred by res judicata, collateral estoppel, and state statute of limitations, because his position 

was not warranted by existing law or nonfrivolous argument). 

In this MDL, there are strong reasons to suspect that a substantial number of cases 

ultimately will be barred by statutes of limitations or repose. For instance, the wave of legal 

advertising that preceded the MDL’s creation and has continued since does not focus on a specific 

recall or other common triggering event that might affect a statute of limitations analysis. Rather, 

it focuses on reoperation after implant, for any reason and at any time. From the information 

available from SFCs and PPFs, at least two common patterns can be seen: 1) the implant at issue 

occurred ten to thirty-five years before the initiation of the suit, and 2) the suit was initiated four 

or more years after the disclosed explant surgery. For the former pattern, statutes of repose in 

states like Tennessee should bar these case regardless of when claims accrued. See Montgomery 

v. Wyeth, 580 F.3d 455 (6th Cir. 2009). For the latter pattern, most states have statutes of 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 19 of 28 PAGEID #: 7771
 - 14 - 

limitations applicable to product liability claims that are three years or shorter and claims typically 

will have accrued by no later than the first surgical intervention. Together, these patterns make it 

clear that there will be a number of time-barred cases and plaintiffs’ counsel should have assessed 

these issues before filing any case. 

It is also clear from SFCs and PPFs that there are hundreds of cases pending where the 

plaintiff has more than one case in the MDL, where the plaintiff has previously resolved some or 

all of her or his claims against Bard, and/or where the case has been the subject of a prior order of 

dismissal. Given existing orders, the process of identifying these cases and seeking dismissal, 

amendment, or consolidation, either voluntarily or by motion, is time-consuming and inefficient. 

Rather, the assessment of pending and prior cases by the same plaintiff, whether by talking to the 

plaintiff or searching dockets, is something that a plaintiff lawyer should have done before filing 

any case. See, e.g., In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987) (“Accordingly, at least when 

an attorney knows or reasonably should know that a claim pursued is frivolous, or that his or her 

litigation tactics will needlessly obstruct the litigation of nonfrivolous claims, a trial court does not 

err by assessing fees attributable to such actions against the attorney.”); Stewart v. The Proctor & 

Gamble Co., Case No. C-1-06-374, 2006 U.S. Dist. LEXIS 102384, at *3 (S.D. Ohio July 21, 

2006) (“Plaintiffs have no right to maintain two actions on the same subject in the same court, 

against the same defendant at the same time.”); see also Augustine, 88 F. Supp. 2d at 1173-74 

(sanctioning attorney under Rule 11 for filing complaint where he should have realized that 

plaintiff’s claims were barred by res judicata, collateral estoppel, and state statute of limitations, 

because his position was not warranted by existing law or nonfrivolous argument). 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 20 of 28 PAGEID #: 7772
 - 15 - 

The Sixth Circuit’s decision in In re Ruben addressed the duties of plaintiffs’ counsel in 

filing cases and the authority of federal courts to discourage frivolous claims. In enunciating the 

standard for evaluating fee awards under 28 U.S.C. § 1927, the court stated: 

28 U.S.C. § 1927 authorizes a court to assess fees against an attorney for 

“unreasonable and vexatious” multiplication of litigation despite the absence of any 

conscious impropriety. An attorney’s ethical obligation of zealous advocacy on 

behalf of his or her client does not amount to carte blanche to burden the federal 

courts by pursuing claims that are frivolous on the merits, or by pursuing 

nonfrivolous claims through the use of multiplicative litigation tactics that are 

harassing, dilatory, or otherwise “unreasonable and vexatious.” 

In re Ruben, 825 F.2d at 984 (quoting Jones v. Continental Corp., 789 F.2d 1225, 1230 (6th Cir. 

1986)). 

As in the Cook orders, it is appropriate to require that plaintiff’s counsel certify that they 

have now conducted an assessment in each case to avoid frivolous claims. Such an inquiry should 

include, at a minimum, by speaking with the plaintiff and checking dockets and other publicly 

available information. When a plaintiff lawyer determines that a case is duplicative or asserts 

claims that have been resolved or extinguished, then voluntary dismissal should follow.5

 Similar 

voluntary actions should follow depending on the particular circumstances, but these plaintiffs 

should be encouraged to take such actions based on the Court’s authority to shift costs and fees in 

the event that involuntary dismissal is obtained after a refusal to dismiss.6

 See 28 U.S.C. § 1927 

 

5

 There are also cases pending in other courts for the same plaintiffs based on the same operative facts. This is 

particularly true as to the coordinated proceeding in Rhode Island state court. In many instances, the plaintiff’s case 

pending in this MDL was filed second and yet many counsel have failed to dismiss their later-filed cases after Bard 

provided notice. The existence of previously filed cases for the same plaintiff, regardless of where filed, should have 

been ascertained by counsel before filing a case in this MDL. Based on principles of comity, these cases should also 

be identified and subject to dismissal. 

6

 There are a number of potential fact patterns related to duplicative cases. For instance, multiple cases in this MDL 

relating to the same claims against Bard or where a case asserts only claims that have been resolved or extinguished 

should result in dismissals. Where a plaintiff has brought two separate suits in the MDL relating to two different 

devices, then consolidation to one case may be appropriate. Where a plaintiff asserts claims, some but all of which 

have been resolved or extinguished, then a plaintiff may elect to dismiss or amend the SFC. Where an order conditions 

re-filing on paying Bard’s fees in connection with obtaining the prior order of dismissal, then a plaintiff may elect to 

dismiss or proceed after paying fees. None of these presents particularly complicated legal issues for plaintiff’s 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 21 of 28 PAGEID #: 7773
 - 16 - 

(authorizing costs and fees from attorney conduct that “multiplies the proceedings in any case 

unreasonably and vexatiously”); Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 

F.3d 642, 646 (6th Cir. 2006) (“Section 1927 sanctions are warranted when an attorney objectively 

‘falls short of the obligations owed by a member of the bar to the court and which, as a result, 

causes additional expense to the opposing party.’”) (quoting In re Ruben, 825 F.2d at 984). 

The benefit to the MDL from requiring certification of these assessments now should be 

obvious. In addition to dismissing or transferring cases that should not be pending in this MDL, 

after these assessments, the parties and the Court will be in better position to identify common 

issues to resolve through motion practice without extensive case-specific discovery. Cases that 

remain after voluntary dismissals and motions will be in better position to be litigated on their 

merits, individually and collectively.

C. Docket Control Orders Do Not Require Prior Settlement 

In other proceedings, the argument against a docket control or Lone Pine order is often that 

such an order is not appropriate until there has been a large-scale settlement. While this may be a 

more palatable way of saying that even frivolous cases should be allowed to remain pending 

without challenge, settlement activity “has never been deemed a condition precedent” to a Lone 

Pine order. In re Fosamax, 2012 U.S. Dist. LEXIS 166734, at *8. 

Although Lone Pine orders have been entered in an MDL setting as to non-settling 

plaintiffs after there has been a large-scale settlement, see, e.g., In re Xarelto, 2021 U.S. Dist. 

LEXIS 25296; In re TRT, 2018 U.S. Dist. LEXIS 205125, settlement activity is not a “necessary 

predicate” for the issuance of such an order. In re Fosamax, 2012 U.S. Dist. LEXIS 166734, at 

*7-*8; see also In re Zostavax, 2022 U.S. Dist. LEXIS, at *1, *7, *8 (granting Lone Pine order 

 

counsel, particularly those who have filed large numbers of cases in this MDL. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 22 of 28 PAGEID #: 7774
 - 17 - 

requiring production of lab reports on plaintiffs’ alleged rashes without prior settlement). As the 

In re Fosamax court stated in issuing a thorough docket control order over vigorous plaintiff 

opposition: 

The Court can discern no rationale for requiring parties to have reached a settlement 

– or be on the brink of settlement – before considering a Lone Pine order. Indeed, 

the primary purpose of Lone Pine orders is to eliminate meritless claims, which is 

at best tangentially related to the status of settlement negotiations. 

Id. at *8. Indeed, it remains true today as it was at the time of In re Fosamax that settlement is not 

a prerequisite for the entry of a Lone Pine docket control order. 

The number of pending cases in this MDL, which continues to rise, is also consistent with 

the posture of a number of MDLs when they issued orders imposing requirements for basic proof. 

The Fosamax MDL had about 1000 pending cases when its order issued. Id. at *2-3. TRT had 

over 7700 cases when it issued its order, Cook IVC had about 8200 pending cases when it issued 

its second order, and In re Vioxx had 8575 cases with 23,450 plaintiffs when it issued its first order. 

See In re TRT, 2018 U.S. Dist. LEXIS 205125, *416; JPML data, 

https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_PendingMay-16-2022.pdf; Minute Entry, In re Vioxx Prods. Liab. Litig., 2:05-md-01657-EEF-DEK, ECF 

No. 12626, at 7 (E.D. La. Oct. 11, 2007), attached hereto as Exhibit 8. In other words, Lone Pine 

or docket control orders have not been reserved only for cases with significantly fewer or 

significantly larger number of cases than this MDL has now. 

Thus, the current posture of this MDL in terms of its settlement history and size is 

consistent with other MDLs when they imposed requirements similar to what Bard seeks here. As 

set out above, the provisions that Bard is requesting will be critical to the future of this litigation, 

regardless of whether there is any large-scale resolution any time soon. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 23 of 28 PAGEID #: 7775
 - 18 - 

D. This MDL Is Ripe For A Lone Pine Docket Control Order 

In its roughly three-and-a-half years of existence, the MDL has moved at a fast pace, with 

extensive generic fact and expert discovery and verdicts in two bellwether trials. Perhaps more 

importantly, the pace of case filings and the change in the nature of the inventory of cases over 

time (e.g., the percentage of PIP cases) remove any doubt that the MDL is mature and ripe for an 

order that would require current and future cases to provide certain key records and certifications 

that basic assessments have been made and core proof exists. The information available on the 

vast majority of cases comes from SFCs and PPFs only but even that limited information reveals 

a number of concerns about cases filed without cognizable injuries or otherwise lacking merit. 

At this stage, a Lone Pine docket control order could both “cull potentially meritless 

claims,” Baker, 2007 U.S. Dist. LEXIS 6601, at *2, and assist the parties in assessing the remaining 

inventory of cases. With more than 16,800 pending cases and more being filed each week, the 

justification for a pre-settlement Lone Pine order here is even greater than in In re Fosamax, where 

there was only a static volume of 1,000 cases pending. In re Fosamax, 2012 U.S. Dist. LEXIS 

166734, at *6. There is no reason that more time should pass before meaningful requirements are 

imposed. 

Particularly for those cases that have been on the docket for several months or years now, 

this is “merely ask[ing] them to produce information they should already have.” Id. (citation 

omitted); see also In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., MDL No. 1871, 

2010 WL 4720335 (E.D. Pa. Nov. 15, 2010) (requiring production of “information which plaintiffs 

and their counsel should have possessed before filing their claims”); In re Vioxx, 557 F. Supp. 2d 

at 744 (“[I]t is not too much to ask a Plaintiff to provide some kind of evidence to support their 

claim that Vioxx caused them personal injury. . . . Surely if Plaintiffs’ counsel believe that such 

claims have merit, they must have some basis for that belief[.]”). At an “age” of 45 months since 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 24 of 28 PAGEID #: 7776
 - 19 - 

the JPML’s centralization order of August 2. 2018, this MDL is roughly as “old” as a number of 

the MDLs where when they issued the docket control orders discussed above. The 3M Combat 

Arms MDL was 37 months old when it issued order earlier this month. In re 3M Combat Arms, 

Exhibit 2. The Vioxx MDL was 33 months old, Zostavax was 44 months old, Physiomesh was 47 

months old, TRT was 48 months old, and Xarelto was 51 months old. See In re Vioxx, 557 F. 

Supp. 2d at 742-45 (referring to November 2007 order); In re Zostavax, 2022 U.S. Dist. LEXIS 

57935; In re Physiomesh, Exhibit 5; In re TRT, 2018 U.S. Dist. LEXIS 205125; In re Xarelto, 

2021 U.S. Dist. LEXIS 25296, at *7-*8 (referring to March 2019 order). While it is difficult to 

compare all the markers of progress between MDLs, this MDL is arguably at least as far along as 

these six other MDLs were when the first docket control or Lone Pine order was issued. This 

MDL also has continued high rates of case filings despite its maturity. Similar to the Cook IVC 

Filter MDL, where the orders detailed above followed a pattern of refusal to dismiss PIP and no 

injury cases, this MDL has also seen the failed promise that PIP cases would be limited to special 

circumstances. The increasing number of cases without apparent compensable injuries weighs in 

favor of taking steps now to discourage future filing of similar cases. 

The same goes for cases that do not belong in the MDL because they are time barred, lack 

proof of implant with a covered device, are duplicates, or have been resolved. Plaintiff’s counsel 

should have evaluated these issues before filing and mustered the documents and information they 

would need to address these issues. See also Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th 

Cir. 2000) (holding that district court was within its discretion to issue a scheduling order that 

“essentially required that information that plaintiffs should have had before filing their claims 

pursuant to Fed. R. Civ. P. 11(b)(3)” be produced); Trujillo v. Ametek, Inc., Case No. 3:15-cv1394-GPC-BGS, 2016 U.S. Dist. LEXIS 84834, at *12 (S.D. Cal. June 28, 2016) (finding that 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 25 of 28 PAGEID #: 7777
 - 20 - 

Lone Pine order “essentially require[d] that information which plaintiffs should have had before 

filing their claims”) (internal citation omitted). With more than 16,800 pending cases, there is 

every reason to take steps now to cull out cases that should not be pending in this MDL and, if 

necessary, start the process of briefing to obtain involuntary dismissals of cases plaintiffs refuse to 

dismiss. There is no conceivable reason why this process should be delayed. 

Winnowing cases, whether because they have no proof of a medical diagnosis of 

compensable injury, lack product identification concerning a covered device, are time-barred, or 

are duplicates of pending or resolved cases, will have profound positive impacts on the MDL. In 

addition to providing the parties with a true picture of potentially meritorious cases, the remaining 

cases may be worked up on their merits, in the fashion the Court deems appropriate, without the 

waste inherent patently non-meritorious cases. 

CONCLUSION

For the reasons stated above, the Court should enter a docket control order consistent with 

the Proposed Case Management Order to require production of evidence of a medical diagnosis of 

compensable injury, proof of implant with a covered device for this MDL, and certification that 

plaintiff’s counsel has conducted an assessment of basic issues that bear on whether a case should 

be pending in this proceeding. Assessment of cases in the MDL has been complicated by the 

number of pending cases that lack a compensable injury, are time-barred, or otherwise should not 

be in this MDL. A docket control order at this juncture would assist in gaining control of the 

docket and fostering an environment conducive to conclusion. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 26 of 28 PAGEID #: 7778
 - 21 - 

DATED: May 27, 2022 Respectfully submitted, 

/s/Michael K. Brown 

Michael K. Brown 

REED SMITH LLP 

355 South Grand Avenue, Suite 2900 

Los Angeles, CA 90071-1514 

Telephone: (213) 457-8000 

mkbrown@reedsmith.com 

Eric L. Alexander 

REED SMITH LLP 

1301 K St., NW 

Suite 1000-East Tower 

Washington, D.C. 20005 

Telephone: (202) 414-9200 

ealexander@reedsmith.com 

Lori G. Cohen 

GREENBERG TRAURIG, LLP 

Terminus 200 

3333 Piedmont Road NE 

Suite 2500 

Atlanta, GA 30305 

(678) 553-2385 

cohenl@gtlaw.com 

Co-Lead Counsel for Defendants C. R. Bard, 

Inc. and Davol Inc. 

William D. Kloss, Jr. 

Vorys Sater Seymour and Pease 

52 East Gay Street 

Columbus, OH 43215 

(614) 464-6202 

wdklossjr@vorys.com 

hageigel@vorys.com 

akminer@vorys.com 

Liaison counsel for Defendants C. R. Bard, Inc. 

and Davol Inc. 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 27 of 28 PAGEID #: 7779
 - 22 - 

CERTIFICATE OF SERVICE 

I hereby certify that on May 27, 2022, I electronically filed the foregoing with the Clerk 

of the Court by using the CM/ECF system, which will send a notice of this electronic filing to all 

counsel of record. 

/s/ Michael K. Brown 

Michael K. Brown 

Case: 2:18-md-02846-EAS-KAJ Doc #: 627 Filed: 05/27/22 Page: 28 of 28 PAGEID #: 7780