1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Gallagher &

Kennedy, P.A.

2575 East Camelback Road

Phoenix, Arizona 85016-9225

(602) 530-8000

Robert W. Boatman (009619) - rwb@gknet.com

Paul L. Stoller (016773) - paul.stoller@gknet.com

Shannon L. Clark (019708) - SLC@gknet.com

GALLAGHER & KENNEDY, P.A.

2575 East Camelback Road

Phoenix, Arizona 85016-9225

Telephone: (602) 530-8000

Ramon Rossi Lopez (CA Bar No. 86361)

(admitted pro hac vice)

LOPEZ McHUGH LLP

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

rlopez@lopezmchugh.com

Co-Lead/Liaison Counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS

PRODUCTS LIABILITY LITIGATION

MD No. 02641

PLAINTIFFS’ UNOPPOSED MOTION

TO STRIKE AND RE-FILE EXHIBITS

IN SUPPORT OF PLAINTIFFS’

MEMORANDUM RE RELEVANCY

AND DISCOVERABILITY OF FDA

INSPECTION AND WARNING

LETTER AND RECOVERY CONE

REMOVAL SYSTEM

Plaintiffs, through counsel undersigned, respectfully request that the Court strike the

unsealed exhibits (Doc. Nos. 697-1 and 697-2) filed in support of Plaintiffs’ Memorandum

Re Relevancy and Discoverability of FDA Inspection and Warning Letter and Recovery

Cone Removal System (Doc. No. 697) on February 10, 2016. Plaintiffs further request

leave to re-file the same documents with the corrections noted below. Plaintiffs’ counsel

has consulted with counsel for Bard, and Bard does not oppose this Motion.

I. Background

On February 10, 2016, pursuant to Case Management Order No. 8 (Doc. No. 519),

Plaintiffs’ filed a Memorandum Re Relevancy and Discoverability of FDA Inspection and

Warning Letter and Recovery Cone Removal System (Doc. No. 697). After the filing, Bard

alerted Plaintiffs that three documents attached to the public (unsealed) version of the

Case 2:15-md-02641-DGC Document 878 Filed 02/24/16 Page 1 of 4
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

exhibits were, in fact, confidential documents produced pursuant to the Protective Order.

These are exhibits 6, 10, and 18.

Counsel for Plaintiffs mistakenly believed that the three documents were not

confidential. Two exhibits (Exs. 6 and 18) bear a Phillips trial exhibit mark, and the

exhibits from that case are now all public, non-confidential documents. It appears that these

documents were not admitted into evidence during the Phillips trial. The third document

(Exhibit 10) is deposition testimony which Bard subsequently designated as confidential.

Plaintiffs seek to have these documents stricken from the record to protect their

confidentiality as claimed by Bard. Plaintiffs intend to replace current Exhibit 18 with

another document that was, in fact, admitted during the Phillips trial and is not subject to

the protective order. Plaintiffs intend to re-file the remaining two exhibits under seal,

subject to this Court granting them leave to do so.1

II. Request to Strike Publicly Filed Exhibits and to Allow Re-Filing Under Seal

Accordingly, Plaintiffs respectfully request that the Court order Plaintiffs’ original

Exhibit set (Doc. Nos. 697-1 and 697-2) stricken and authorize Plaintiffs to re-file their

public exhibits replacing Exhibit 18 with a new document and excluding Exhibits 6 and 10

from the public exhibits. Plaintiffs further request the Court enter a revised Order directing

the Clerk to seal Exhibits 6 and 10. A proposed form of order is attached.

Counsel undersigned apologizes to the Court, its staff and the parties for any

inconvenience.

DATED this 24th day of February, 2016.

GALLAGHER & KENNEDY, P.A.

By: /s/ Robert W. Boatman

Robert W. Boatman

Paul L. Stoller

Shannon L. Clark

2575 E. Camelback Road, Suite 1100

Phoenix, Arizona 85016-9225

1 Because of the confusion caused by the “confidentiality” designations on numerous

documents that are public by virtue of the Phillips trial, Plaintiffs intend to provide copies

of proposed exhibits to Bard in advance of future filings so that Bard may indicate

whether it believes the documents are confidential prior to Plaintiffs’ filing. This should

avoid recurrence of this problem in the future.

Case 2:15-md-02641-DGC Document 878 Filed 02/24/16 Page 2 of 4
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LOPEZ McHUGH LLP

Ramon Rossi Lopez (CA Bar No. 86361)

(admitted pro hac vice)

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

Co-Lead/Liaison Counsel for Plaintiffs

Case 2:15-md-02641-DGC Document 878 Filed 02/24/16 Page 3 of 4
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of February, 2016, I electronically transmitted

the attached document to the Clerk’s Office using the CM/ECF System for filing and

transmittal of a Notice of Electronic Filing.

/s/ Nancy Jo Koenes

5256085v2/26997-0001

Case 2:15-md-02641-DGC Document 878 Filed 02/24/16 Page 4 of 4