UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 _________________

In Re: Bard IVC Filters ) MD-15-02641-PHX-DGC

Products Liability Litigation )

 )

 ) Phoenix, Arizona

 ) October 5, 2017

 ) 

_____________________________________)

BEFORE: THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS

SCHEDULING CONFERENCE

Official Court Reporter:

Patricia Lyons, RMR, CRR

Sandra Day O'Connor U.S. Courthouse, Ste. 312

401 West Washington Street, SPC 41

Phoenix, Arizona 85003-2150

(602) 322-7257

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared with Computer-Aided Transcription

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A P P E A R A N C E S

 

Plaintiffs' Leadership Committee:

Gallagher & Kennedy

By: MARK S. O'CONNOR, ESQ.

2575 E. Camelback Rd., Ste. 1100 

Phoenix, AZ 85016

Lopez McHugh, LLP

By: RAMON R. LOPEZ, ESQ.

100 Bayview Circle, Ste. 5600 

Newport Beach, CA 92660 

For the Plaintiffs:

Gallagher & Kennedy

By: PAUL L. STOLLER, ESQ.

2575 E. Camelback Rd., Ste. 1100 

Phoenix, AZ 85016

Nations Law Firm

By: HOWARD L. NATIONS, ESQ.

3131 Briarpark Dr., Ste. 208

Houston, TX 77042

Lopez McHugh, LLP 

By: AMORINA P. LOPEZ, ESQ.

100 Bayview Circle, Ste. 5600 

Newport Beach, CA 92660 

Heaviside Reed Zaic

By: JULIA REED ZAIC, ESQ.

312 Broadway, Ste. 203

Laguna Beach, CA 92651

Dalimonte Rueb, LLP

By: JOHN A. DALIMONTE, ESQ.

85 Devonshire St., Ste. 1000

Boston, MA 02109

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A P P E A R A N C E S (continued)

Goldenberg Law, PLLC

By: STUART GOLDENBERG, ESQ.

800 LaSalle Ave., Ste. 2150

Minneapolis, MN 55402

Faraci Lange, LLP

By: HADLEY L. MATARAZZO, ESQ.

28 E. Main St., Ste. 1100

Rochester, NY 14614

Babbitt & Johnson, PA

By: JOSEPH R. JOHNSON, ESQ.

1641 Worthington Rd., Ste. 100

W. Palm Beach, FL 33409

Hausfeld, LLP

By: STEVEN ROTMAN, ESQ.

1700 K St. NW, Ste. 650

Washington, DC 20006

For the Defendants:

Nelson Mullins Riley & Scarborough

By: RICHARD B. NORTH, JR., ESQ.

By: MATTHEW B. LERNER, ESQ.

By: BRANDEE J. KOWALZYK, ESQ.

201 17th Street NW, Suite 1700

Atlanta, GA 30363 

Snell & Wilmer

By: JAMES R. CONDO, ESQ.

400 East Van Buren 

Phoenix, AZ 85004

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P R O C E E D I N G S

THE COURT: Counsel, let's talk about a number of

issues. The first thing I want to mention is the information

I asked Bard to file about this recent disclosure of Vanguard

ownership of Bard.

The reason I asked the question is because Vanguard

Group appeared in a supplemental disclosure statement a month

or so ago, and through an investment adviser, I own, I think,

interests in two Vanguard mutual funds. And so when the name

popped up, the conflict popped up given what I've got in the

system for conflicts.

I was hoping to learn more about the nature of where

Vanguard owns its interest. I inferred from what you

provided, Mr. North, that this 10.73 percent of Bard stock is

owned in different Vanguard funds. Is that the idea?

MR. NORTH: That's our understanding, Your Honor.

THE COURT: Okay. Well, there is a judicial ethics

opinion, it is Advisory Opinion Number 106 from the Committee

on Codes of Conduct. Canon (C)(1)(c) of the Code of Judicial

Conduct requires a judge to disqualify himself or herself when

the judge knows that he or she "has a financial interest in

the subject matter in controversy or in a party to the

proceeding." Or when the judge has "any other interests that

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proceeding."

But later in the canons there is a definition of what

a financial interest is, and it says, "Ownership in a mutual

or common investment fund that holds securities is not a

'financial interest' in such securities unless the judge

participates in the management of the fund." And that is

Section 3(C)(3)(c)(i). And I certainly don't participate in

the management of Vanguard funds.

However, in Ethics Opinion 106 what it goes on to say

is even if a mutual fund is the nature of the judge's

investment, then the judge should consider whether the value

of the fund itself could be affected by a ruling in the case.

And it says whether or not that's true will depend on, I'm now

reading from the opinion, "whether litigation might have a

substantial effect on the judge's interest in a fund will

often turn on the size and diversity of the funds'

investments. The value of the mutual fund that invests in

many companies in a variety of industries would rarely be

substantially affected by the outcome of litigation involving

one particular company. In contrast, a mutual fund that

invests in only a few companies in a particular industry would

be more likely to be substantially affected by certain types

of litigation."

So what I will do, since it appears Bard doesn't

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sense. And the funds I own an interest in I think are just

general corporate funds. They're not health care company

funds or manufacturing funds. I think one is large cap

growth. And there's other one. I will get a sense whether

Bard is more than a small holding in those funds. And if it's

not, then I think the ethics opinion says it's okay. If it is

for some reason, then I will talk to you all, but I'll likely

tell my adviser to sell that fund and put me in something that

doesn't involve Bard holdings. 

I explain that all to you so you can think about it,

let me know if you have additional thoughts or concerns

arising from this. I'm happy to get input from you.

Mr. North.

MR. NORTH: Your Honor, I wanted to note for the

Court, too, of course, that the acquisition of Becton

Dickinson of Bard is scheduled to take place in the fourth

quarter, and assuming that that acquisition does go forward --

that's the explanation for the volatility in the Bard stock

now. If that goes forward, then Vanguard's share of the

merged company will be very diluted, and who knows where it

will end up. And that could happen within two months or so.

THE COURT: Okay.

Mr. Lopez, did you have any thoughts on this issue?

MR. LOPEZ: My thoughts are, Your Honor, that we

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us, we certainly don't see any reason why you should recuse

yourself or why we should ask you to.

THE COURT: Okay. Well, I do think I should look to

make sure that there's not something unusual about Vanguard's

holding in Bard that means it has a disproportionate effect on

the fund. I'd be very surprised. I think the Vanguard funds

are pretty broadly invested. But if there's anything like

that, I will let you know so we can decide what ought to

happen, and if somebody has an objection they can certainly

make it.

I'd like to talk last about scheduling of the

bellwether trials, which is one of the issues you raised in

the joint report.

Here's what I'd like to talk to you about. Well,

actually, let's take up the discovery issue first and then

come back to how we do the hearings on the motions for summary

judgment and the Daubert motions.

As I read your joint report, I was uncertain as to

what the parties' positions -- not what their positions were

but how to square them. Here was my uncertainty: One of the

issues that's been raised concerns expert communications with

experts where an attorney might be involved. And at the

bottom of page 13 of your joint report the plaintiffs say, I'm

reading line 25, "Plaintiffs' counsel has reviewed the

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communications regardless of whether attorneys were copied on

the e-mails."

When I get over to page 15 and Bard's position, it

says at the bottom of page 15, line 24, "Plaintiffs should

produce or log any e-mail communication 'From:' an expert

where another expert is recipient of the e-mail regardless of

the lawyer's presence on the e-mail."

Sounds like the plaintiffs are saying we've produced

those. Bard is saying you should produce them or log them.

MR. STOLLER: Your Honor, might I explain?

THE COURT: Yeah. Please.

MR. STOLLER: I'll tell you, because I'm the one who

did the review and I went back again last night and reviewed

the e-mails, the reference on page 13 is we have produced any

what I would characterize as expert-to-expert communications.

One expert talking to another expert, even if lawyers were

copied on that.

I distinguished that from, and I think this is where

the rub is between the parties, most of these e-mails are

multiple experts, multiple lawyers. Typically starting with

lawyer to experts, maybe another lawyer cc'd on it, and then

series of replies and responses back and forth in a longer

e-mail chain. In that context, there's To's, From's, cc's,

and they change. I would equate that with a conversation in a

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particular line may not have any significance because who's on

what line has more to do with the e-mail below than the e-mail

itself, if that makes sense.

In that context there are e-mails, I believe, at

least that have an expert on the From line and an expert on

the To line, as well as lawyers either in the cc line or also

in the To line.

The analysis we did -- or I should say the analysis I

did was to read all of the substance of those e-mails and

determine are those really just communications from Expert A

to Expert B and the lawyers just happen to be on the e-mails?

Or is it part of a larger conversation involving the experts

and the lawyers back and forth?

With respect to the former category, if it was just

Expert A talking to Expert B, we produced those. Even if the

lawyers were on the cc line or on a To line. And they should

at least know that because a number of the e-mails that we

produced that were expert to expert have lawyers on them.

I distinguish that from those larger communications

that are expert to attorney or attorney to expert but that To

and From lines don't necessarily reflect who it's from and who

it's to.

Does that make sense?

THE COURT: Yes.

1 5 : 1 4 : 0 3 MR. STOLLER: Okay. That's the distinction I draw.

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We have produced all of the ones that are truly Expert A

talking to Expert B. We have not produced all of the

experts -- excuse me, all the communications where you may

have an expert on the From line and also on the To line.

THE COURT: And the distinction you've drawn, as I

understand it, is your judgment that the topic of those

e-mails you have not produced are essentially attorney-expert

communications? Is that --

MR. STOLLER: Yes. And I can give you some solid

examples. One example will be lawyer sends an e-mail to

Experts 1 through 4 copies Lawyer 2 on it. So From line is

Lawyer A, To line is Expert 1, 2, 3, 4, cc line is Lawyer 2.

And perhaps it asks a question: Experts, tell me what you

think on this.

Expert 1 responds. So the next e-mail will say From

Expert 1 To Lawyer 1, and cc'd all of the other folks.

Experts 2, 3, 4, and Lawyer 2.

Expert 2 then responds. In the chain of e-mails his

response would be to the e-mail just from Expert 1, but what

he's actually doing is responding to the question in the first

e-mail. But his e-mail would read From Expert 2 To Expert 1,

and maybe Attorney 1 as well, I'm not sure, I could pull up

some examples, with cc's of all the other folks.

The From and To line don't necessarily tell you to

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expert is responding to the lawyer question. Right? Which

was, because of the way e-mail plays out, the From and To

lines look as if he's responding to the first expert but

that's not what the response is; you have to actually read the

substance to understand it's a response here.

In a larger context, these are communications that

don't say, hey -- because the To and From lines aren't

necessarily indicative, they don't say in the body of the

e-mail, Expert 1 tell me this, Expert 2 tell me this, Lawyer 1

tell me this. They're more akin to a conversation where

Mr. Lopez asks a question, the experts respond, perhaps I

chime in in the next e-mail and say what about these things,

Expert 2 may respond to me or to Ramon's original e-mail or,

in fact, to clarify something that Expert 1 said in response

to his first one.

I have -- all I can tell Your Honor, in the same way

that if it didn't involve multiple experts, when you go

through and you review those communications you have with your

experts and you do your 26(b)(4)(C) analysis to see, does this

fall under exceptions of 1, 2 or 3, and you look to say what's

the content of it, that's what we did here is determine what

is the content and who is the communication actually between.

We produced the ones actually between the experts and

where lawyers just happen to be on the e-mails. We did not

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the conversation.

THE COURT: Okay. 

Mr. North.

MR. NORTH: Mr. Lerner is going to address this.

MR. LERNER: Your Honor --

THE COURT: Pull the mic over, would you.

MR. LERNER: At the last -- can you hear me? 

THE COURT: Yeah. 

MR. LERNER: At the last conference the Court ordered

the privilege log. And there very well may be some of the

communications are protected, but without a privilege log we

can't really test that. It's a very unique situation when you

have joint experts. I've looked at the case law, there's not

really a discussion about this particular issue with joint

experts. 

So what I was going to propose, since we've kind of

reached an impasse about this issue, is the reason why the

privilege log is helpful, I was going to suggest like when you

did a privilege log review when they were challenging Bard's

privilege log, you did an in-camera review of a limited amount

of documents.

In this situation it might be helpful for you to

review, if you're able to do it, 10 or 15 of the e-mail chains

to provide some guidance to the parties.

1 5 : 1 8 : 1 4 The reason why a privilege log would be helpful with

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that is we can do a randomization of that so you have a

sampling of 10 or 15 documents.

I'm not sure if the privilege log would give us

enough information or not to be able to tell whether the

communications are protected or not. But this is a very

fact-intensive exercise and that's why, in thinking about a

solution to this, I thought the solution we came up with last

time for Bard's privilege log would be an in-camera inspection

of a limited number of documents that provides guidance to the

parties, and that may help resolve the issue like you did last

time.

THE COURT: Okay.

Mr. Stoller, what are the numbers we're talking

about?

MR. STOLLER: Dozens if not hundreds of e-mails,

which is why I said -- the privilege log issue for me is one

of it doesn't provide any information that's helpful to this

analysis, right? If the To, From, and cc lines aren't

telling, the only other thing you're going to have is it's an

e-mail, the date. The subject matter of the conversation is

protected under 26(b) whatever, (4)(C), anyway and doesn't

make a distinction in terms of discoverability unless it's one

of the exceptions of 1, 2, and 3, which we've already given to

them. So that line doesn't make any difference.

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we're withholding it based on 26(b)(4)(C).

So a privilege log won't make a difference. All that

will do is identify the e-mail. It won't provide the

information to the challenge they're purporting to make.

If you ask me the number of e-mails, I couldn't tell

you because, for example, given the threading, I may have four

copies of the same e-mail at different stages and times. But

there are dozens if not 100, 100-plus e-mails.

Categorically, again, I'll tell you, I did it twice.

I did it weeks ago when we did the first production, I did it

again last night to make sure, okay, is there anything in here

that's expert to expert that might be subject to it? And I've

got to go do a couple confirmations on two e-mails with my

co-counsel to see if there's an issue there, but beyond that,

Your Honor, they're group conversations and the lawyers are

intimately and integrally involved in them.

THE COURT: What is your thought on Mr. Lerner's

suggest of an in-camera review?

MR. STOLLER: Your Honor, I -- here's the thing, Your

Honor. We could do this on everything. We could do this on

everything we subpoena from them and subpoena from us and

throw things at you. I don't think it's a use of time.

Either -- either we trust the process and the people producing

documents or we don't. If they tell me they don't trust me,

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in-camera review.

THE COURT: Any other thoughts? I'm not going to ask

you if you trust Mr. Stoller, Mr. Lerner, but do you have any

other thoughts?

MR. LERNER: I've enjoyed working with Mr. Stoller on

this privilege issue over last month and I do trust him and

just as I hope he trusts us, we still had to produce thousands

of pages of privilege logs ourselves. They didn't completely

trust us. And I'm okay with that.

But at the end of the day, I think a limited -- it's

very fact intensive. So I think different people's opinions

could change the analysis. So I think it would be helpful to

have a limited review. I understand Your Honor has a lot of

stuff going on. Whatever you think is reasonable. If it's

ten e-mails, so be it. If it's -- I think that would help

resolve the issue.

THE COURT: And I think your point is the reason you

want a privilege log is so you can choose at random the 10?

MR. LERNER: I also think -- I don't know --

Mr. Stoller said that the privilege log that they would create

would not be of any help. In your order you said provide the

privilege log that specifically provided specific basis on

which the plaintiffs conclude that the communications are

protected. I understand they don't necessarily want to do a

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log for all the documents we logged. It's part of the

process.

MR. STOLLER: If I might, Your Honor. I think the

difference here is these are single objection. It's

categorical. The log's not going to make a difference between

whether I say e-mails --

THE COURT: I understand --

MR. STOLLER: Let me make a second point, if I might,

Your Honor. On the privilege, what they're proposing, the

in-camera inspections you did were to addressing categories of

things and make a decision, is this privileged or not, that

could be applied across a larger number. That's not what

would happen here. You would look at one and say "I disagree

with Mr. Stoller's analysis" or "I agree," and all that's

going to tell you about is that single e-mail.

Unless you're going to review all of them, there's no

way to apply whatever you're going to do in that in-camera

review across the greater --

THE COURT: When you started, Mr. Stoller, you held

up a folder. Is that all of them? Is that all of them?

MR. STOLLER: That is all of them.

THE COURT: Rather than -- it seems to me we could

do -- if we're going to take up Mr. Lerner's suggestion, we

could do it in one of two ways. You can write those out in a

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camera and we'll pick ten. And we'll look through them and

see if we agree with you that those are privileged. And if

so, we'll say so.

MR. STOLLER: I'm happy to give it to you, Your

Honor. I'll have to make another set --

THE COURT: It saves you the time --

MR. STOLLER: I'm much happier to give it to you and

have you randomly draw.

THE COURT: It makes it random for your purposes.

We'll go through and pick every third and look at ten, and

that resolves the issue and you don't have to spend time

writing a privilege log.

MR. STOLLER: We'll do that, Your Honor. I'll have

to make a new set of these, but I'll do that.

THE COURT: If you can get it to us by the end of

next week, we'll do that.

MR. STOLLER: Okay.

MR. LERNER: Thank you, Your Honor.

THE COURT: Now, there's a different privilege log

issue, I think, that the defendants are raising, which is the

sufficiency of the plaintiffs' obtaining communications from

their experts.

MR. LERNER: Your Honor, the issue again, the issue

with the joint experts, with Northwestern doctors, there's

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all the places they need to look at in order to determine what

e-mails exist.

The issue is that plaintiffs made the point that the

Northwestern doctors work together and so they communicate all

the time by e-mail and so it would be a burden on them to go

through all of the e-mails to try to figure out what documents

may be responsive, relevant, for purposes of this case. So

instead what the plaintiffs did is they looked at their own

servers and determined that.

THE COURT: Right.

MR. LERNER: The problem with that is they actually

produced one document that is communications just among the

experts.

For them to look at their own servers, I think we're

missing some documents. And if they want to impose some

limitations or restrictions to look at a certain time period,

certain keywords, kind of things we had to do for our

employees' ESI, I'm happy to discuss that. Keywords, date

restrictions, so we get a more limited and reasonable set of

documents for them to review.

I'm just concerned if they only reviewed the

plaintiffs' e-mail server that documents haven't been

reviewed.

MR. STOLLER: Your Honor, Mr. Rotman who dealt

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confirmed with the experts. They said every e-mail they had

relevant to this litigation and to their -- and to their

engagement, they copied the lawyers on. And so it became a

question of they have their e-mail servers --

THE COURT: I understand that, Mr. Stoller. They

made the assertion in the paper and again that you produced

e-mails among those four doctors that don't copy a lawyer. I

think his point is if the doctors told you that, it's not

accurate because they've got an e-mail that doesn't include a

lawyer.

MR. STOLLER: If you point it out to me I can

probably address it, but to my knowledge we had all -- that

wouldn't be possible because we collected the e-mails from the

hospital --

THE COURT: Do you have it, Mr. Lerner? Show it to

Mr. Stoller, would you.

(Counsel confer.)

MR. STOLLER: I've seen it, Your Honor. And Steve

can correct me if I'm wrong, we talked with the doctors and

they said to their knowledge everything's done, they have

given us everything they have. And that e-mail he's referring

to didn't come from somewhere else, it came from Hausfeld

servers.

THE COURT: Is Hausfeld copied on that e-mail?

1 5 : 2 7 : 2 3 MR. STOLLER: The email he -- no, it got forwarded to

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them after.

THE COURT: Forwarded to Hausfeld?

MR. STOLLER: Correct.

THE COURT: So it was internal communication among

the experts without Hausfeld and then one of them forwarded it

to Hausfeld?

MR. STOLLER: Correct. Apparently they fixed it

after the fact.

THE COURT: Will you follow up with them on that,

because it sounds like there was an e-mail that was just among

the experts and no lawyer copied and then one of them

forwarded it.

MR. STOLLER: That's correct.

THE COURT: It sounds like there has been e-mails

just among the experts not copied to Hausfeld. I think you

should follow up and just make sure since it happened in that

instance that it didn't happen in others that weren't

forwarded.

MR. STOLLER: We will do so, Your Honor.

THE COURT: Provide -- you got the number?

MR. STOLLER: I have it, Your Honor.

THE COURT: I'll ask them to do that, and I think

they'll find out and address the issue and it will be

resolved.

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THE COURT: Okay.

You also mentioned in the case management report that

I had not ruled on the retaking of Dr. Henry's deposition.

Frankly, I forgot about this after the last case management

conference. This wasn't put on my desk when it came in, so I

missed it. I'll get you a ruling on Dr. Henry's deposition in

the next week.

Let's talk then about other motions. It seems to me

we've got four categories of motions. We've got the

preemption motion that is now fully briefed as of last week.

We've got what I'll call Daubert motions. I think there's 13

of them, ten filed by the defense and three filed by the

plaintiffs, which ask that experts not be permitted to

testify. We've got motions to disqualify experts based upon

their involvement with other parties earlier in the case.

And I think, if I remember correctly, that most of

those motions to disqualify concern testifying experts,

although one includes some consulting experts.

And then we've got motions for summary judgment that

seem to me to be related to the bellwether cases. Some are

directed at the bellwether plaintiffs, some are directed at

affirmative defenses.

MR. STOLLER: On that last point, Your Honor, I

believe the response on the affirmative defense was -- you all

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think that's not an issue any more, based on our review of

your reply. Or response.

MR. LERNER: I think the issue was -- I think that's

resolved. For the Jones case we were just preserving our

right to -- preserve the right for plaintiffs to meet their

burden of proof as to causation.

THE COURT: Well, let's identify it.

MR. STOLLER: Your Honor, Plaintiffs' Motion for

Partial Summary Judgment re Affirmative Defense Number 13.

It's Docket 7363, I believe. I think that's been resolved by

virtue of their response to that in which they withdraw the

affirmative defense.

THE COURT: So you are withdrawing that affirmative

defense?

MR. LERNER: Yes, Your Honor.

THE COURT: Okay. So do you want us to grant that

motion or just deem the affirmative defense withdrawn? Both

have the same effect --

MR. STOLLER: I'd like you to grant my motion because

that always means I won, Your Honor.

THE COURT: All right. I'm going to grant that

motion so Mr. Stoller's feeling good. We'll grant that as

uncontested as Docket 7363.

There are some other case-specific motions that have

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to talk to you all to see if there was any issue we need to

resolve.

So here's the question I have for you with respect to

the four categories of motions: It seems to me we should set

an oral argument on the preemption motion. And the question I

then have is whether you have views on the best way to hold

hearings on the Daubert motions.

I do not think we should try to hold one hearing on

all 13 Daubert motions because I try to be prepared before a

hearing and, frankly, if we wait until I'm prepared on all 13

motions I will have forgotten the first seven by the time we

get to that hearing. It will just take too long.

So my thought is perhaps we should put the Daubert

motions into some sort of categories and address them in

groups where I can be prepared at the hearing to address all

of them in a group. And maybe we include with some of those

Daubert hearings specific -- well, I think we ought to include

motions to disqualify experts when we're addressing the

Daubert motion on those experts, but I don't know whether we

should include summary judgment motions on bellwether

plaintiffs' cases. My sense is we really ought to deal with

those in advance of trials rather than to tackle them while

we're tackling Daubert motions.

Another question I have, because I just haven't read

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to the case as a whole and are really bellwether plaintiff

specific and we ought to hold off and rule on those before a

bellwether trial.

I'm interested in thoughts you have about the best

way to organize these hearings.

Pull the mic up, would you, Mr. O'Connor.

MR. O'CONNOR: Just thinking, I don't have them all

in front of me, some of the Daubert motions did address

general issues that are across the board and also may address

one or two or three of the bellwether plaintiffs. If you're

going to cut them anyway to categorize them right here and

right now, I think there's Daubert motions against medical

witnesses and nonmedical witnesses. How many of each, I don't

know.

THE COURT: Okay.

MR. NORTH: Your Honor, my recollection, and this is

off the top of my head, there's no more than one or two that

have bellwether-specific things in it --

MR. O'CONNOR: That may be right.

MR. NORTH: -- most are general. 

But my suggestion would be if the Court could tell us

roughly, like, do you want to do three to five in one hearing?

Five to seven? Some range?

I suspect the two teams could get together and

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efficient to do medical versus nonmedical because some of the

medical and nonmedical have the same issue. Like how much can

witnesses talk about corporate documents. And that crosses

the board, and we can probably do several that have that same

issue at one time.

I think we could group them by agreement if the Court

would give us parameters. Looking at doing them in two

hearings? Three hearings? Or what.

THE COURT: Okay. Give me just a minute.

I'm going to be right back. I'm going to grab my

iPad. It's easier to look at the calendar there. I'll be

right back in.

(Pause in proceedings.)

THE COURT: Please be seated.

Counsel, let me talk out loud for a minute and get

your reaction.

I'm looking at the calendar going forward.

We, I think, could have a hearing on some of the

motions on Friday, November 17th, which is about a little over

a month from now. Between now and then I'm completely booked.

We could hold a hearing then on some of the motions.

I think we could hold another hearing on Friday,

December 15th. I'm scheduled to be in a criminal case,

criminal trial, in the middle of an eight-day criminal trial

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confident it will plead out. So I think that will be

available.

I've got a very large criminal case which is

scheduled to start January 23rd. If it goes, that will take

three weeks or a month. I just don't know if that's going to

go. But we could have probably another hearing the week

before that, maybe on January 19th.

February, the second half of the month I'm going to

be in a civil trial that's going.

March is relatively open.

April is completely booked.

And May I have some flexibility.

My thought coming in today was that I would like to

try the first bellwether case in March because it's a pretty

open month. The question in my mind is can we get through all

of these motions and get them decided by March, just because

of the rest of my docket.

If we held -- tell me if I'm crazy on this. If we

held a hearing on November 17th, on December 15th, on

January 19th, then that would have us hearing, if we're going

to do the preemption motion and the 13 Daubert motions and the

three disqualification motions and the first one or two

bellwether summary judgment motions, that's 16 motions. That

means we'd be arguing five or six each month. I just don't

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the rest of these months are filled in. But that would be one

possibility.

Another possibility would be to say we'll do the

first bellwether trial in May, which would give us more time

for the motions to be decided, but that's pushing us,

obviously, later into the year.

By the way, Judge Brodman told me you all have a

trial scheduled in front of him on August 6th and he intends

to hold that trial date. So that's going to interfere with

our ability to do bellwether trials, I presume, because I

assume many of you will be involved in that.

So give me your thoughts in light of those calendar

realities.

MR. LOPEZ: Well, Your Honor, I don't know if this is

on the agenda --

THE COURT: Can't hear you, Mr. Lopez.

MR. LOPEZ: Apologize. 

If we could get the Court to select, if you're in a

position to do that, the first two -- I think -- I think -- I

could be wrong, but I thought we were going to pick two and

those were going to be the ones we were going to focus our

attention on. Are we going to wait -- 

THE COURT: Two what?

MR. LOPEZ: Two of the five bellwether cases. Are we

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case-specific motions? Or might we lessen the load --

THE COURT: My intent is when we pick the dates to

plug in the trials. And what we'll need to do is set a final

pretrial conference. I assume there will be case-specific

motions in limine and other motions we'll need to address in

advance of that trial. So I think I intend to do that. But

the question is -- I mean, are you suggesting, depending which

we pick, we may not have to address some of these more

general --

MR. LOPEZ: Not right away. I mean, we can lessen at

least the immediate load if we can put three of the cases that

are not going to be in the first two, you know, kind of --

THE COURT: But don't -- isn't it almost certain the

Daubert motions will relate to the first two?

MR. LOPEZ: The Dauberts do. I mean, nothing's going

to affect the Daubert motions.

THE COURT: Those plus the motions to disqualify are

16 motions, and we've got the preemption motion. That's 17.

I don't see any way to avoid having to decide 17 motions

before the first bellwether trial.

MR. LOPEZ: No, that's true. That's true.

THE COURT: Okay. I interrupted you. Go on with

your thought.

MR. LOPEZ: I was just thinking, because I thought

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talking about doing as we're getting closer --

THE COURT: Right. Obviously it needs to be far

enough in advance so you all can frame the case, but I don't

see a reason to decide the motions for summary judgment on

Case Number 5 before we try Case Number 1.

MR. LOPEZ: Well, we want to keep the March date for

sure. And the August date I will tell you, Judge Brodman's

won't affect our ability to try a case here, or anywhere else

for that matter. Even remands of cases at that point. We've

got plenty of trial teams ready to try cases. So I wouldn't

let that date affect us, at least. I cannot speak for defense

counsel. They may not have the same ability to do that. But

we're ready to try more than one case at any given time

anywhere. So we've kind of mapped out what that might look

like next year and we're prepared to have trial teams ready to

do that. We could -- the number's large. 25 to 30 cases

we're hoping to get tried next year in state court, early

remands and the like.

But obviously preemption is one we'd like the Court

to address first. And then Dr. Kessler is important. I'll

tell you why. A lot of people depend on and rely on

Dr. Kessler's findings, his factual -- the bases of his

opinions, including some of the defense lawyers -- I mean

defense experts actually have said they didn't need to look at

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Dr. Kessler because he was so thorough in his review and spent

hundreds of hours, which might explain his bill. He actually

spent 700 hours, 770 hours, working on the case.

But I mean I understand that's -- I would say for the

parties, I can speak for the plaintiffs, it won't overburden

us if we could spread all 15 or 16 of those over three

hearings. But I --

THE COURT: I'm not worried about you.

MR. LOPEZ: I didn't think so.

THE COURT: I'm not worried about them.

MR. LOPEZ: Okay.

THE COURT: We have a two-person law firm here that

has 400 other cases and a lot of things scheduled. The

question is can I do justice to those motions and get it done

by March.

MR. LOPEZ: Well, I guess the only thing I can say,

Your Honor, we'd like to, if the Court can handle that many

motions over three hearings, we would like to keep that March

date if we could.

THE COURT: Okay.

MR. NORTH: Your Honor, we are perfectly fine with

the March date also and would like to see if we could, of

course if the Court is able to do that.

It may not be as intimidating as it sounds in the

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think of three Daubert motions that essentially raise the same

issue, for the most part. The two motions to disqualify are

the same legal standard, slightly different facts but the same

legal standard. Those two can be treated in tandem, I think,

quite easily.

My suggestion would be we maybe plan with these

dates, that we come up with a scheme in the next week or so,

if not sooner, to, in collaboration Mr. Stoller and I can talk

about how to group these, maybe, over the three hearings, and

then the Court can look at that and see if you think that's

feasible. Maybe we can do a little blurb as to why we think

these motions are related to each other or there might be some

efficiencies that way.

MR. LOPEZ: I actually think that's a really good

idea. I didn't think about the fact you're going to see a lot

of the same stuff in a lot of these motions. It's not like

you're going to put this aside and start with a whole new set

of facts and law and things. We could do that. We could side

by side -- actually, it may look -- may make five motions look

like two to you, Your Honor, because the issues do overlap.

So just give us a time when you'd like us to make that

proposal and we'll get it to you.

THE COURT: All right. Let's then set hearings for

Friday, November 17th at 1 p.m., Friday December 15th at 1

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recognizing that the 15th may get bumped if that criminal

trial goes.

And what I'd like to do is have you by a week from

Friday, if you can, a week from tomorrow, propose the best

grouping -- if you can jointly, that would be great -- on how

to address these motions, both in terms of what's going to be

most informative to you all as we work toward a March trial

date, but also what you think is going to be the best

allocation of workload. We'll be looking at the same issue. 

I do think we should address the preemption motion at

the November 17th hearing and get that decided up front. But

we can do more than that, I think, at that hearing. And if

you can get me by a week from Friday your suggestions, then

we'll look them over and issue an order that actually sets out

the schedule.

When we talked about the trials, I think the thought

was we needed three weeks for each trial. Is that still the

case?

MR. LOPEZ: Yes, Your Honor.

MR. NORTH: Yes, Your Honor.

THE COURT: Because of our criminal docket, I usually

have ten or so sentencings on Mondays so I try not to schedule

trial days on Mondays. We can do it if we need to, but it

really jams up sentencings the weeks before and after.

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hours -- I mean four days per week, five and a half hours of

trial time per day? So that would be 22 hours of trial time a

week. 66 hours total trial time for the cases. Is that

workable?

MR. LOPEZ: That works for us, Your Honor.

MR. NORTH: Yes, Your Honor.

THE COURT: Okay. Then let's set the first

bellwether trial for Tuesday, March 13th, and we will hold the

13th through the 16th, the 20th through the 23rd, and the 27th

through the 30th for that trial.

Traci, do you see any problems with that?

THE COURTROOM DEPUTY: No. We're fine.

THE COURT: And that means that we will need to set a

final pretrial conference ahead of that. I think I'd like to

do that at the November 17th hearing because I will have a

better sense for what else is on the calendar. As I

mentioned, I'm going to be in another civil trial in the last

half of February that I'm sure is going.

So we'll hold those trial days and work toward being

ready for that in terms of the other motions that we're going

to resolve.

I don't want to today put -- well, maybe we should.

I think what I'd like to do --

Is Szilagyi scheduled to start on June 5th?

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THE COURT: All right. I think I'd like to set the

second bellwether trial to go May 15th through the 18th, 22nd

through the 25th, and 29th through June 1st.

Defense counsel, can you try a case that overlaps what's

happening in state court? I'm just wondering how much we need

to steer around what Judge Brodman's going to be doing.

MR. NORTH: You know, ideally we'd prefer not to, but

we can if we need to.

THE COURT: All right. I've got several big, complex

criminal cases. I don't know when I'm going to have to set

those in 2018 for trial, so I'll wait to set the third

bellwether trial until I have a clearer picture on that. And

there is a possibility, which I will try to avoid, that the

May date could get bumped by one of those big, complex

criminal cases, which takes precedence. But I don't know yet

for sure which are going and exactly when they'll be ready.

I would like to make the November 17th hearing

another status conference as well. So we will put in the

order that comes out after today that you should file a status

report ahead of that so we can just talk about where we are in

the case.

In terms of the two bellwether trials to be tried in

March and May, I didn't go back and read the bellwether order

about what we said about picking which goes first. Remind me

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MR. NORTH: Your Honor, I'd have to go back and

figure out which order it is, but I believe the Court in a

footnote in choosing the bellwether cases suggested the Jones

case would go first, most likely, and the Booker case would go

second.

THE COURT: Anybody remember which case management

order that was?

MR. LOPEZ: I don't remember the order, but I

remember the Booker and Jones cases.

MR. NORTH: Your Honor, I can find it in one second

here.

MR. LOPEZ: If it says that, I read it the other way.

THE COURT: Let me read -- let me find it.

It is Case Management Order Number 23. I picked five

bellwether trials: Mulkey, Hyde, Jones, Kruse, and Booker.

MR. NORTH: My recollection it was a footnote.

THE COURT: I said in Footnote 1, "Although the Court

declines to order the trials now, it makes sense to try Jones

and Booker first in order to facilitate a more informed

selection of the sixth case."

And I think -- well, I won't try to recreate my

thinking.

What are your thoughts on that, Jones and Booker as

the first two?

1 5 : 5 7 : 2 5 MR. LOPEZ: Well, I noticed the word "first" came

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right after the word "Booker," so that would be --

THE COURT: "Jones and Booker first."

MR. LOPEZ: Oh, comma "first."

THE COURT: No, no comma.

MR. LOPEZ: No comma. All right. Then Booker first.

THE COURT: I think those are the two cases we ought

to try first.

You want Booker?

MR. LOPEZ: Yes, Your Honor.

THE COURT: You probably want Jones?

MR. NORTH: I want Jones, Your Honor, because

Booker's the only one of the five with an open surgery, which

represents such a small percentage of the overall MDL. We all

on our side want to try a nonsurgical case because that's the

vast majority of the inventory.

THE COURT: Is there a particular reason you think

Booker should go first?

MR. LOPEZ: Well, I mean, there are a lot of reasons.

The reason you do bellwether cases is to see whether or not

the cases are going to lead to something other than continue

to try 27 other cases over the next century.

So Booker's a G2. Jones is Eclipse. I mean, G2 has

a seven-year history of devices on the market, maybe eight.

It sold way beyond the time it got taken off the market.

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cases that --

THE COURT: We're going to try them both. Why does

this matter to the two sides?

MR. LOPEZ: It matters because if we're looking at

the rationale for trying -- we'll get a good value of a G2

case.

THE COURT: We're going to try it as one of the first

two. I'm just -- I have a coin. 

MR. LOPEZ: Oh, we do?

THE COURT: Yeah. Heads we'll try Jones first,

Booker we'll try -- I mean heads we'll try Jones first, Booker

we'll try tails first. No.

MR. LOPEZ: It's like heads I win, tails you lose.

THE COURT: Heads we try Jones first, tails we try

Booker first. All right? 

Want me to re-flip it? 

Heads Jones, tails Booker.

It is tails. Booker first.

That's an indication how important I thought that

decision was.

We're going to try them both, and we're going to try

them both within a three-month period. You'll have verdicts

in the two.

Okay. So which one just won? Booker, right?

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THE COURT: We'll try Booker in March, Jones in May.

And factor that in as you think about the order in

which we should address these motions at the three hearings

that are coming up in November, December, and January.

What else do we need to address?

Oh, I know what we need to address. We need to

address the question of other judges trying bellwether cases.

Whether I can try the third bellwether case really

depends on what happens to the rest of my docket from the

first two, so I won't make that decision until probably early

next year. We'll try to pick a date in November. I am

guessing there are some judges in this courthouse that would

take the case. We've got a number of senior judges who could

help out. If not, we can bring somebody in.

What we do at the next two, my thought we ought to

address that as we get closer to the beginning of the year.

If we can try all five cases in 2018, that would be great.

But I will tell you now, if we do that it will need to be with

the help of some other judges.

I don't know that we need to slay that dragon today.

Why don't we plan to address that as we get closer to 2018.

And I'm certainly open to having other judges come in. I

would rather get other judges to help and get them tried more

quickly than do them all myself and stretch it out into 2019

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get the bellwethers resolved.

Are there any other matters that we need to address?

MR. STOLLER: Judge, do you want to set a pretrial

conference date on Jones now that we have a trial date --

MR. LOPEZ: He meant Booker.

MR. STOLLER: No, he's going to set the pretrial

conference at the next hearing for Booker. I'm looking

further ahead.

THE COURT: You mean set the one in May now? No, I

don't. I'll need to work around my schedule when we set that.

Anything else from anybody?

MR. NORTH: Nothing from the defendants, Your Honor.

MR. LOPEZ: Thank you, Your Honor.

THE COURT: Okay. Thank you all.

(End of transcript.)

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C E R T I F I C A T E

I, PATRICIA LYONS, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion

of the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control, and to the best

of my ability.

DATED at Phoenix, Arizona, this 13th day of October,

2017.

 s/ Patricia Lyons, RMR, CRR

Official Court Reporter 

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