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Ramon Rossi Lopez - rlopez@lopezmchugh.com 

(California Bar Number 86361; admitted pro hac vice) 

Lopez McHugh LLP 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

949-812-5771 

Mark Stephen O’Connor (011029) – mark.oconnor@gknet.com 

Gallagher & Kennedy, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

602-530-8000 

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 

No. MD-15-02641-PHX-DGC 

PLAINTIFFS’ OPPOSITION TO 

DEFENDANTS’ MOTION AND 

MEMORANDUM TO SEAL RELATING 

TO PLAINTIFFS’ RESPONSES TO 

DEFENDANTS MOTIONS TO EXCLUDE 

PLAINTIFFS’ EXPERTS 

I. INTRODUCTION 

Plaintiffs hereby oppose C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. 

(Collectively referred to as “Bard”) Motion and Memorandum to Seal Relating to Plaintiffs’ 

Responses to Defendants’ Motions to Exclude Plaintiffs’ Experts (“Responses and 

Exhibits”) and request this Court refrain from sealing the documents at issue as Defendants 

offer no sufficient justification to seal documents in this matter. 

Bard has asked this Court for the “exceptional” remedy of sealing documents from 

the public in derogation of the common law and First Amendment rights of access to judicial 

documents. 

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Although Bard’s brief does not address this point, Bard has put the very documents 

it seeks to seal at issue. Bard filed Daubert motions in every bellwether action against most 

of Plaintiffs’ experts, and Plaintiffs’ rely on these experts to support their Responses to 

Bard’s Motions for Summary Judgments. The documents that Bard urges the Court to seal 

are not only relevant, but necessary for Plaintiffs to fully and properly respond to Bard’s 

motions seeking to defeat Plaintiffs’ causes of action and exclude Plaintiffs’ experts. 

The Motions before the Court and the documents at issue in Bard’s Motion to Seal 

are of significant importance to the public in general, and particularly to these Plaintiffs and 

the thousands of other individuals in this litigation who allege harm by Bard’s defective 

products. This is a critical health safety litigation with significant stakes and a national 

scope, and these are the first cases before the MDL court to reach the Daubert motion stage. 

Bard has represented to this Court – and the Plaintiffs, the public, and everyone with an 

interest in this litigation - that several of Plaintiffs’ experts have no factual support for their 

testimony. This is not true. In fact, Plaintiffs’ experts have reviewed and relied on many 

Bard internal documents which Bard did not provide to its own experts. 

Bard requests to redact a total of thirty (34) Responses and Exhibits listed in Ex. A 

to Defendants’ Motion and Incorporated. Memorandum To Seal (discussed in detail within 

this brief); Bard’s Motion should be denied for the following reasons: (1) Defendants failed 

to meet the burden to show “compelling reasons” based on specific facts that demonstrate 

real and actual harm or hardship that will result from disclosure for the Response and 

Exhibits related to Robert McMeeking, PhD. and Derek Muehrcke, M.D.; (2) Defendants 

failed to show that “good cause” to exist to seal their documents related to Plaintiffs’ 

Responses and Exhibits for Rebecca Betensky, Ph.D, David Garcia, M.D., Michael Streiff, 

M.D., and Suzanne Parisian, M.D.; (2) the documents are neither trade secrets nor 

confidential information; speculative commercial harm is insufficient to seal information 

and the public is entitled to a right to access these Responses and Exhibits. 

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II. ARGUMENT 

A. THE PROTECTIVE ORDER IS INSUFFICIENT ON ITS OWN TO 

ESTABLISH THAT THESE DOCUMENTS SHOULD BE FILED 

UNDER SEAL 

On November 9, 2015, the Court granted a stipulated blanket protective order 

pursuant to Rule 26 of the Federal Rules of Civil Procedure. (Dkt. No. 268). The Order 

provided a broad definition of what information could meet the “good cause” standard under 

Rule 26 and allowed Bard to self-designate discovery materials as protected: 

The parties, through their respective counsel, stipulate to the entry of a 

protective order to govern the dissemination of documents, materials, and 

other information, including the substance and content thereof, designated by 

any party as confidential and produced by any party in support of motions, 

in response to written discovery, or during any formal or informal discovery 

in this litigation subject to the terms as set forth below. 

Courts frequently enter umbrella or blanket protective orders to govern voluminous 

productions to expedite discovery efforts rather than requiring a showing of good cause on 

a document-by-document basis for all responsive documents produced at the outset of 

litigation. United States ex rel. Brown v. Celgene Corp., 2016 WL 6542729, at *4 (C.D. 

Cal. Mar. 14, 2016). Therefore, the protective order in this case did not modify Bard’s 

burden to provide particularized showing of good cause with respect to any individual 

documents or address Bard’s burden regarding establishing compelling reasons when 

seeking to seal dispositive motions, or Daubert motions submitted “in connection with” 

pending motions for summary judgment. See, San Jose Mercury News, Inc. v. U.S. Dist. 

Court—Northern Strict (San Jose), 187 F.3d 1096 (9th Cir. 1999); In re Midland Nat. Life 

Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120–21 (9th Cir. 2012). 

First, Bard seeks an overly broad application of the protective order by requesting 

protection for documents that were never subject to the discovery process, such as expert 

reports and schedules. Next, Bard presumes the Order only affords protection for them and 

overlooks that the language of the Order also provides relief to Plaintiffs; Plaintiffs rely on 

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paragraph 22, “Challenges to Designation of Confidential Information,” to support their 

opposition and to challenge the sealing of their Responses and Exhibits based on Bard’s 

failure to show “good cause” along with the First Amendment right to access.1

“Though a stipulated protective order may provide documents designated as 

confidential are presumptively protected, a party’s calling a document confidential pursuant 

to a protective order does not make it so when it comes to filing the document with the 

court.” Tillman v. C.R. Bard, Inc., 297 F.R.D. 660, 665 (M.D. Fla. 2014)(quoting Joao Bock 

Transaction Sys., LLC v. Fidelity Nat. Info. Servs. Inc., Case No. 3:13-cv-223-J-32JRK, 

2014 WL 279656, at *1 (M.D. Fla. Jan. 24, 2014)). As such, Plaintiffs challenge the 

designation of the Documents at Issue, and assert that protective orders are insufficient on 

their own to establish that documents should be filed under seal. 

B. BARD CANNOT MEET THE HEAVY “COMPELLING REASONS” 

BURDEN REQUIRED TO JUSTIFY SEALING DOCUMENTS 

SUPPORTING THEIR DAUBERT RESPONSES AND EXHIBITS 

WHICH FORM THE BASIS OF PLAINTIFFS’ RESPONSES TO 

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGEMENT. 

1. The “Compelling Reasons” Standard Applies To Daubert Motions 

Submitted “In Connection With” Pending Motions For Summary 

Judgment. 

The “compelling reasons” standard applies not only to motions for summary 

judgment, but also to Daubert motions submitted “in connection with” pending motions for 

summary judgment because “exclusion of expert testimony could cause a crippling blow to 

the sponsoring party’s ability to prove its case.” See, Open Text S.A. v. Box, Inc., 13-CV04910-JD, 2014 WL 7368594, at *2 (N.D. Cal. Dec. 26, 2014)(citing In re Midland Nat. 

Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1120–21 (9th Cir. 2012). 

 

1

 There is a default common law right of access to records in civil proceedings. Nixon v. 

Warner Communications, Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 

(1978). As stated above, the dispositive motion standard was not addressed in the Order. 

(Dkt. No. 268).

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When Daubert motions seeking to exclude the testimony of experts are “aimed 

squarely at the other side’s damage methodology” and “in connection with” pending 

motions for summary judgment, the Ninth Circuit applies the “compelling reasons” standard 

and requires the moving party to comply with this standard instead of the “good cause” 

standard. Id. A Daubert motion does not, on its own, conclusively invoke the higher burden 

of proof. Id. A Daubert motion must be connected to a pending summary judgment motion, 

effectively “dispositive of a motion for summary judgment.” Open Text S.A. v. Box, Inc., at 

*2. (quoting Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597 (9th Cir.1996).2

Here, Plaintiffs rely on experts Robert McMeeking, PhD. and Derek Muehrcke, M.D. 

to establish genuine issues of material facts “in connection with” the following Responses 

to Bard’s Motions for Summary Judgment: 

 Plaintiffs’ Omnibus Separate Statement of Facts In Support Of Their 

Response to Defendants’ Motion For Summary Judgments In The Bellwether 

Cases, (Dkt. 7950); 

 Plaintiff’s Controverting Statement of Facts In Opposition to Bard’s Motion 

For Partial Summary Judgment as to Plaintiffs Lisa and Mark Hyde’s Claims, 

(Dkt. 7953); 

 Plaintiffs’ Controverting Statement of Facts to Defendants’ Separate 

Statement of Facts in Support of Motion for Summary Judgment as to 

Plaintiffs Doris And Alfred Jones’s Claims, (Dkt. 7944); 

 Plaintiff Carol Kruse’s Controverting Statement of Facts in Support of Her 

Memorandum in Opposition to Defendants’ Motion and Memorandum in 

Support of Motion for Summary Judgment as to Plaintiff Carol Kruse’s 

Claims, (Dkt.7948); 

 

2

 Non-dispositive motions “are often ‘unrelated, or only tangentially related, to the 

underlying cause of action,” and, as a result, the public’s interest in accessing dispositive 

materials does “not apply with equal force” to non-dispositive materials. Kamakana v. 

City & County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). 

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 Plaintiff’s Controverting Statement of Facts in Opposition to Bard’s Motion 

for Summary Judgment as to Plaintiff Debra Mulkey’s Claims, (Dkt. 7946); 

 Plaintiff’s Controverting Statement of Facts in Opposition to Bard’s Motion 

for Summary Judgment as to Plaintiff Sheri-Una Booker’s Claims, (Dkt. 

8165). 

As such, Defendants’ Daubert Motions to Exclude Plaintiffs’ Experts are “aimed 

squarely at the other side’s damage methodology” and Plaintiffs’ Response sand Exhibits 

in regards to Robert McMeeking, PhD. and Derek Muehrcke, M.D. are “in connection with” 

pending motions for summary judgments as listed above; here, Bard is required to show 

“compelling reasons” to seal based on specific facts that actual resulting harm outweighs 

the strong presumption of access to court records. 

2. Standard for Sealing Daubert Motions Submitted “In Connection 

With” Pending Motions For Summary Judgment. 

Courts have historically recognized a “general right to inspect and copy public 

records and documents, including judicial records and documents.” Nixon v. Warner 

Communications, Inc., 435 U.S. 589, 597 (1978). To overcome the “strong presumption in 

favor of access” in relation to a dispositive motion, the party seeking to seal bears the burden 

of overcoming this presumption by meeting the “compelling reasons” standard. Kamakana 

v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). “That is, the party must 

articulate compelling reasons supported by specific factual findings that outweigh the 

general history of access and the public policies favoring disclosure, such as the public 

interest in understanding the judicial process.” Id. at 1178-79 (internal citations and 

quotations omitted). “In turn the Court must conscientiously balance the competing interest 

of the public and the party who seeks to keep certain judicial records secret.” Id. at 1179. 

(internal citations and quotations omitted). Conclusory statements concerning hypothetical 

harm that may result from public disclosure of such documents fail to carry this burden Id. 

at 1182. Whenever a document has been filed in connection with a dispositive motion, even 

if the document had been previously sealed upon a showing of good cause, the “compelling 

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reasons” standard applies. Id. at 1179-80. See also, In re Pradaxa (Diabigatran Etexilate) 

Products Liability Litigation, 2014 WL 321656, at *4 (S.D. Ill. Jan. 29, 2014) (ordering a 

German drug maker to de-designate 85 documents previously marked as confidential and 

ordering the court clerk to unseal the documents). 

The Ninth Circuit disfavors sealing broad categories of documents; particularly 

where specific details regarding the need for such protection are absent. Kamakana at 1184. 

The moving party must demonstrate a genuine need and provide a detailed explanation of 

that need and specific facts supporting the harm that may result. Id. at 1182-84. 

The “compelling reasons” standard is a strict one, and requires that the party seeking 

to seal material show specific, individualized reasons for sealing the material, “without 

relying on hypothesis or conjecture,” such as “whether disclosure of the material could 

result in improper use of the material for scandalous or libelous purposes or infringement 

upon trade secrets.” See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 679 & n.6 (9th Cir. 

2009). “Simply mentioning a general category of privilege, without any further elaboration 

or any specific linkage with the documents, does not satisfy the burden.” Kamakana, 447 

F.3d at 1179. 

Then the district court must weigh the “relevant factors” and base its decision “on a 

compelling reason,” and “articulate the factual basis for its ruling, without relying on 

hypothesis or conjecture.” Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 

2010)(citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995)). “Relevant factors” 

include the “public interest in understanding the judicial process and whether disclosure of 

the material could result in improper use of the material for scandalous or libelous purposes 

or infringement upon trade secrets.” Hagestad, 49 F.3d at 1434 (quoting EEOC v. Erection 

Co., Inc., 900 F.2d 168, 170 (9th Cir.1990) (See also, Kamakana 447 F.3d at 1179, 

“compelling reasons sufficient to outweigh the public’s interest in disclosure and justify 

sealing court records exist when such court files have become a vehicle for “improper 

purposes, such as the use of records to gratify private spite, promote public scandal, circulate 

libelous statements, or release trade secrets”). However, the mere fact that unsealing such 

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records may lead to embarrassment, incrimination, or exposure to litigation is not a 

compelling reason to seal court records. Id. 

As will be discussed below, Bard has not provided “compelling reasons” to seal any 

of the documents at-issue related to Robert McMeeking, PhD. and Derek Muehrcke, M.D 

nor has Bard shown the Response and Exhibits to contain trade secrets or confidential 

information. 

C. BARD HAS FAILED TO MEET ITS BURDEN TO SHOW 

COMPELLING REASONS BASED ON SPECIFIC FACTS THAT 

ACTUAL RESULTING HARM OUTWEIGHS THE STRONG 

PRESUMPTION OF ACCESS TO COURT RECORDS. 

Bard must establish “compelling reasons” to support redacting documents listed in 

Exhibit A related to Robert McMeeking, PhD. and Derek Muehrcke, M.D. Bard generally 

claims that the redacted information in Bard’s documents contain “confidential information 

and correspondence concerning Bard’s processes, procedures, methods, and corrective 

active strategies, policies and procedures.” (Dkt. 8123 at 3). Other than such vague 

generalities, Bard offers no specific grounds or reasons why disclosure of specific 

documents would put it at any potential competitive disadvantage or provide Bard’s 

competitors with an economic advantage. Nor can such a showing be made. Notably Bard’s 

motion is conspicuously devoid of any supporting affidavits, declarations or other evidence. 

A review of the exhibits in support of Plaintiffs Responses confirms the nonexistence 

of “trade secret” information or related categories which Bard incorrectly claims warrant 

sealing. (Dkt. 8123-1, Exhibit A). Bard does not provide specific, individualized reasons 

for sealing nor to justify that its redactions are necessary to protect trade secrets; See Pintos 

v. Pacific Creditors Ass’n, 605 F.3d 665, 679 & n.6 (9th Cir. 2009). It is clear from a tertiary 

review of Exhibit A to Bard’s Motion that it is lacking compliance with the Ninth Circuit’s 

elevated “compelling reasons” standard based on Daubert motions submitted “in 

connection with” pending motions for summary judgment. 

Bard’s failure to provide specific factual support for its claims of trade secret is 

strikingly similar to the factual deficiency in Biocore, Inc. v. Khosrowshahi, 96 F. Supp. 2d 

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1221, 1231-32 (D. Kan. 2000) (“Biocore”). In Biocore, a company alleged that its business 

procedures for conducting clinical trial studies and for obtaining FDA clearance under FDA 

regulations were trade secrets. As in the present matter, Biocore, the plaintiff, failed to 

produce evidence describing the procedures, and failed to explain how its procedures 

differed from others in the field or from the general FDA requirements. The court ruled that 

Biocore had failed to establish the documents were trade secret because “[p]laintiffs failed 

to meet their burden of proving that their method of conducting efficacy studies is different 

from methods that are matters of general knowledge in the trade.” Id. at 1231. The court 

explained its decisions as follows: 

While both of these items are marked confidential, they contain nothing but 

basic information. Plaintiffs do not show that the validation protocol and 

validation procedures are not generally known. They provide no evidence 

regarding protocols and procedures which other companies use. Neither 

document describes any procedure that appears to be out of the ordinary; the 

documents list obvious procedures which every company in the field would 

also follow with slight but obvious variations for specific equipment and 

products. 

Id. at 1232 (internal citations omitted). As in Biocare, Bard has failed to provide anything 

beyond general and unsupported claims. 

D. BARD FAILS TO ESTABLISH GOOD CAUSE TO SEAL 

Bard relies on the “good cause” standard to justify the sealing of the Plaintiffs’ 

Responses and Exhibits related to Rebecca Betensky, Ph.D, David Garcia, M.D., 

Michael Streiff, M.D., and Suzanne Parisian, M.D. A party asserting “good cause” bears 

the burden, for each particular document it seeks to protect, of showing that specific 

prejudice or harm will result if no protection is granted. Foltz v. State Farm Mut. Auto. 

Ins. Co., 331 F.3d 1122, 1130–31 (9th Cir. 2003) (citing San Jose Mercury News, 187 

F.3d at 1102); See also, Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 

476 (9th Cir.1992) (holding that “broad allegations of harm, unsubstantiated by specific 

examples or articulated reasoning, do not satisfy the Rule 26(c) test.”) (quoting 

Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986) (internal quotation 

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marks omitted)); Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653 (D.Md.1987) 

(requiring party requesting a protective order to provide “specific demonstrations of 

fact, supported where possible by affidavits and concrete examples, rather than broad, 

conclusory allegations of potential harm”). The burden is on the party requesting a 

protection to demonstrate that (1) the material in question is a trade secret or other 

confidential information within the scope of Rule 26(c), and (2) disclosure would cause 

an identifiable, significant harm. Deford, 120 F.R.D. at 653. Even if a court finds “good 

cause” under Rule 26(c) to seal a document, it must still determine whether the common 

law right of access compels production. Kamakana v. City & County of Honolulu, 447 

F.3d 1172, 1180 (9th Cir. 2006) 

Here, Bard fails to establish “good causes” based in fact that outweigh the general 

history of access and the public policies favoring disclosure. In one sentence, Bard 

summarizes it’s “good cause” to seal all thirty four (34) documents subject to its Motion: 

“competitor companies would gain an unfair economic advantage if they gained access 

to Bard’s commercial information, therefore causing Bard real and tangible hard in the 

highly competitor medical device industry.” (Dkt. 8123 at 4). Not once does Bard 

articulate or identify an example of the specific harm that could be caused by release of 

the documents at issue nor does Bard demonstrate a trade secret or information that is 

at risk. It is clear; Bard fails to satisfy the Rule 26(c) test and the 9th Circuits requirement 

to establish a “good cause” basis to seal documents attached to Plaintiff’s Response and 

Exhibits to Bard’s Daubert Motions. 

The one case Bard cites to suggest that a “good cause” standard for nondispositive motions is relevant, Chi. Tribune Co. v. Bridgestone/Firestone, Inc. 263 

F.3d. 1304, 1312-13 (11th Cir. 2001), relates only to “material filed with discovery 

motions,” which are not at issue in the Motion before the Court. Further, and more 

importantly, Bard fails to address the differences between the “compelling reasons” 

standard and the “good cause” standard. A “good cause” showing will not, without 

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more, satisfy a “compelling reasons” test. See, Foltz, 331 F.3d at 1135–36; Phillips ex 

rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir.2002). 

Bard seeks to seal documents after the discovery period has closed and just prior 

to trial. Plaintiffs’ position is that Bard has not shown “good cause” to seal these 

particular exhibits, precisely they have not argued with specificity the substance and 

portions of the documents they seek to seal. Moreover, no arguments have been 

presented as to the nature and substance of these documents that justify sealing nor has 

a description of the specific injury, competitive or otherwise, that Bard is likely to 

experience if these documents are not sealed. 

E. BARD’S DOCUMENTS CANNOT BE CHARACTERIZED AS TRADE 

SECRETS.

Bard’s documents at-issue cannot be objectively characterized as trade secrets or 

confidential information. The information contained in these documents has no inherent or 

intrinsic actual or potential value. The majority of the information is stale, and several of 

the documents involve products which have not been sold since 2009. Secret or confidential 

information becomes “stale” over time and thus rule that a previous confidential designation 

no longer applies. See, Salomon Smith Barney, Inc. v. HBO & Co., 2001 WL 225040, at *2 

(S.D.N.Y. Mar. 7, 2001) (stating that although there may have been reasons to mark 

documents as confidential at the time they were generated, there was insufficient cause 

shown “for so treating them today”). 

Bard argues generally that the medical device industry is competitive. Bard appears 

to supplant “confidentiality” with “trade secret” because “[b]usiness information alleged to 

be confidential ‘is not entitled to the same level of protection from disclosure as trade secret 

information.’” Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d 

Cir. 1991), quoting Littlejohn v. BIC Corp., 851 F.2d 673, 685 (3d Cir. 1988). Trade secrets 

have been defined in the Ninth Circuit as “any formula, pattern, device or compilation of 

information which is used in one’s business, and which gives him an opportunity to obtain 

an advantage over competitors who do not know or use it.” In re Elec. Arts, Inc., 298 F. 

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App’x 568, 569–70 (9th Cir. 2008) (applying the Restatement’s definition of trade secret in 

the record-sealing context). 

The documents Bard seeks to redact do not include formulas, patterns, or 

compilations of information which would provide an opportunity or advantage to Bard’s 

competitors. There is nothing in these documents that would provide any value to any 

competitor or to Bard in keeping them a secret from its competitors. Bard has not elucidated 

a compelling reason to redact this information and speculative commercial harm is 

insufficient to overcome the “strong presumption in favor of public access.” 

III. CONCLUSION 

Bard fails to establish both “compelling reasons” and “good cause” based in fact that 

outweighs the general history of access and the public policies favoring disclosure; as such 

Bard failed to establish specific facts showing that these documents are “trade secrets” and 

that it would suffer a serious and specific harm from disclosure of this information. Bard’s 

motion does not articulate a “narrowly tailored” remedy as required when contemplating 

suppression of the public’s First Amendment right of access to these documents. 

RESPECTFULLY SUBMITTED this 24th day of October, 2017. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Mark S. O’Connor 

Mark S. O’Connor 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

LOPEZ McHUGH LLP 

Ramon Rossi Lopez (CA Bar No. 86361) 

(admitted pro hac vice) 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

HEAVISIDE REED ZAIC 

Julia Reed Zaic, Esq. (CA Bar No. 224671) 

(admitted pro hac vice)

312 Broadway, Suite 203 

Laguna Beach, California 92660 

Counsel for Plaintiffs 

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I hereby certify that on this 24th day of October, 2017, 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/ Gay Mennuti 

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