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LAW OFFICES

One Arizona Center, 400 E. Van Buren, Suite 1900

Phoenix, Arizona 85004-2202

602.382.6000

Robert W. Boatman (009619)

Paul L. Stoller (016773)

Shannon L. Clark (019708)

GALLAGHER & KENNEDY, P.A.

2575 East Camelback Road

Phoenix, Arizona 85016-9225

Telephone: (602) 530-8000

rwb@gknet.com

paul.stoller@gknet.com

SLC@gknet.com

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

James R. Condo (#005867)

Amanda C. Sheridan (#027360)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren, Suite 1900

Phoenix, Arizona 85004-2202

Telephone: 602.382.6000

Facsimile: 602.382.6070

jcondo@swlaw.com

asheridan@swlaw.com

Richard B. North, Jr. (admitted pro hac vice)

Georgia Bar No. 545599

Matthew B. Lerner (admitted pro hac vice)

Georgia Bar No. 446986

NELSON MULLINS RILEY & SCARBOROUGH LLP

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

Telephone: (404) 322-6000

Telephone: (602) 382-6000

richard.north@nelsonmullins.com

matthew.lerner@nelsonmullins.com

Attorneys for Defendants C. R. Bard, Inc. and

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS PRODUCTS

LIABILITY LITIGATION,

No. 2:15-MD-02641-DGC

STIPULATION OF THE PARTIES

(Bellwether Selection Process)

Case 2:15-md-02641-DGC Document 923 Filed 03/01/16 Page 1 of 8
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Phoenix, Arizona 85004-2202

602.382.6000

Pursuant to Case Management Order No. 8, Paragraph II [Doc. 519], the parties

submit their Stipulation regarding the bellwether selection process. The parties agree that

the goal of the bellwether selection process is to identify cases, in a proportionate manner,

which are representative of the types of cases pending in MDL 2641. To accomplish that

goal, and to efficiently manage discovery for all currently pending and future cases in

MDL 2641, the parties recommend establishing an “Initial Plaintiff Pool.”1From this

Initial Plaintiff Pool, the parties propose selecting a total of forty-eight (48) cases, for

which Plaintiff Fact Sheets (“PFS”) and Defendants Fact Sheets (“DFS”) will be required

(the “PFS/DFS Group 1”). From the PFS/DFS Group 1, the parties will then select an

initial discovery group (“Discovery Group 1”), which will consist of twelve (12) cases.

From Discovery Group 1, six (6) bellwether cases will be selected to constitute

Bellwether Group 1.

I. Initial Plaintiff Pool

A. The parties agree that the Initial Plaintiff Pool should include all cases filed

and properly served upon Defendants in MDL 2641 as of April 1, 2016.

B. The parties will provide Plaintiff Profile Forms (“PPF”) and Defendants

Profile Forms (“DPF”) for the Initial Plaintiff Pool cases. For purposes of the Initial

Plaintiff Pool cases, the deadlines established in CMO No. 5 (Doc. 365) will be

expedited. All Plaintiff Profile Forms must be served by May 1, 2016, and the

Defendants Profile Forms shall be served within thirty (30) days after the date of receipt

of the PPF. However, in the event that the total number of cases in the Initial Plaintiff

Pool exceeds 350, the parties agree to extend the Defendants’ deadline for filing DPFs and

agree to meet and confer about the length of that extension. Cases filed subsequent to the

date that the Initial Plaintiff Pool is established shall continue to be governed by the

1

For purposes of this Stipulation, the Initial Plaintiff Pool does not include those cases

which make up the group of “Mature Cases” referenced in CMO NO. 8, Para. I (C)

[Doc 519], with the exception of the Conn, Milton, and Mintz cases, which the parties

agree should be removed from that list. The parties will address those cases in a separate

Joint Submission, as requested by the Court.

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Phoenix, Arizona 85004-2202

602.382.6000

deadlines established in CMO No. 5 (Doc. 365). In order to make the process as efficient

as possible, the parties agree to provide their PPFs and DPFs on a rolling basis, as they are

completed.

II. PFS/DFS Group 1

A. The parties agree that twenty (20) days after completion of the exchange of

PPF/DPF for the Initial Plaintiff Pool, the parties shall make a simultaneous exchange of

lists identifying twenty-four (24) representative cases each. Those forty-eight (48) cases

shall constitute PFS/DFS Group 1. The lists exchanged by the parties shall be organized

alphabetically by plaintiffs’ last name and shall include the civil action number for each

case.

B. Should Plaintiffs and Defendants select one or more of the same cases

among their twenty-four (24) cases selected for PFS/DFS Group 1, thus resulting in a

total pool of fewer than forty-eight (48) plaintiffs, the parties will alternate to identify

additional plaintiffs to bring the pool to forty-eight (48), with Plaintiffs having the first

selection. The parties shall make simultaneous exchange of the additional selections to

complete the pool within 3 days of the initial simultaneous exchange set forth above.

III. Plaintiff Fact Sheets and Defendants Fact Sheets

A. Pursuant to the Court’s Order in CMO NO. 8, Part II, the parties have been

discussing the form of their proposed Plaintiff Fact Sheets (“PFS”) and Defendants Fact

Sheets (“DFS”). Subject to the approval of the Court, and by the stipulation of the

parties, the parties agree to submit the proposed fact sheets to the Court on or before

March 18, 2016 in a joint filing. Any disagreements about the proposed Fact Sheets

should be submitted to the Court at that time in a matrix format.

PFS and DFS will be completed for each case in PFS/DFS Group 1.

/ / /

/ / /

/ / /

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Phoenix, Arizona 85004-2202

602.382.6000

B. Timing of Provision of PFS/DFS.

1. Plaintiffs anticipate being able to provide all PFS for the PFS/DFS

Group 1 within thirty (30) days from the final determination of the

makeup of PFS/DFS Group 1.

2. Defendants anticipate being able to provide all DFS for PFS/DFS

Group 1 within thirty (30) days thereafter.

3. The parties agree to provide completed PFS/DFS on a rolling basis as

they are completed.

C. Records Discovery in PFS/DFS Group 1.

1. Plaintiffs will execute and provide Defendants with records

authorizations, agreed upon by the parties, which accompany the PFS

form. The parties are jointly working to retain a records vendor and

to have records collection protocol for the process, costs, and how

those costs will be borne for the records obtained through the vendor.

The parties intend to submit to the Court a stipulated proposed Case

Management Order relating to Joint Records Collection within the

next two weeks.

2. The parties have agreed that, pursuant to the provisions for the records

vendor process, upon receipt of a plaintiff’s PFS, Defendants may

commence immediately to obtain records for that plaintiff.

IV. Discovery Group 1

A. Selection Process

1. At this time, the parties cannot accurately estimate how long it will

take, with the assistance of their records vendor, to obtain and review

relevant records on each plaintiff in PFS/DFS Group 1. This

uncertainty makes it difficult for the parties to estimate a date by

which they will be able to select an initial Discovery Group of

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Phoenix, Arizona 85004-2202

602.382.6000

plaintiffs from the PFS/DFS Group 1. The parties currently

anticipate having adequate medical records on PFS/DFS Group 1

cases by December 1, 2016, after which they will make their

respective selections of initial cases for further fact discovery.

2. By December 10, 2016, the parties shall exchange lists of ten (10)

cases, selected in a manner consistent with the goal of identifying

representative cases. The parties can each designate four (4) cases on

those lists for automatic inclusion in Discovery Group I. After

exchange of lists, the parties will meet and confer in an effort to

identify from the remaining four (4) additional cases that will be

included in Discovery Group 1. By December 17, 2016, the parties

will complete their meet and confer process and submit a list of

twelve (12) cases they recommend as Discovery Group 1.

3. If the parties are unable to agree upon the four (4) additional cases that

will constitute Discovery Group 1 with the parties’ respective

selections, the parties shall submit to the Court, outside of the ECF

system, by the deadline set forth in Paragraph IV.A.2., or at a time

directed by the Court, their proposed lists of four (4) additional cases

and a Memorandum in support of their selections and in opposition, if

applicable, to the opposing party’s selections. Within seven (7)

business days of such submission, the parties may submit a response

to the opposing party’s Memorandum regarding selection of cases.

The parties propose that the Court then select the final four (4) cases

to be included in the twelve (12) cases to constitute Discovery

Group 1.

4. Discovery Group 1 will be governed by a scheduling order and case

management order that will be determined at the time the group is

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Phoenix, Arizona 85004-2202

602.382.6000

selected. The parties will meet and confer in an effort to agree upon

such scheduling order but anticipate discovery between approximately

December 10, 2016 and February 10, 2017.

V. Bellwether Group 1

A. Selection Process

1. The initial bellwether cases for trial will be selected from Discovery

Group 1.

2. After having met and conferred, and by March 1, 2017, the parties

shall exchange lists of six (6) proposed selections from Discovery

Group 1 for bellwether plaintiffs, and order of trials. The parties

will meet and confer in an effort to agree upon a group of six (6)

cases to constitute Bellwether Group 1, which shall be done in a

manner consistent with achieving the goal of proportionate

identification of representative cases. If the parties are unable to

agree on six (6) cases, the parties shall submit to the Court, outside of

the ECF system, by March 5, 2017, their proposed lists and a

Memorandum in support of their selections and in opposition, if

applicable, to the opposing party’s selections. Within seven (7)

business days of such submission, the parties may submit a response

to the opposing party’s Memorandum regarding selection of cases.

The parties propose that the Court then select the final group of six

(6) cases to form Bellwether Group 1.

3. Bellwether Group 1 will be governed by a scheduling order and case

management order that will be determined at the time the group is

selected. The parties will meet and confer in an effort to agree upon

such scheduling order with the goal of completing remaining caseCase 2:15-md-02641-DGC Document 923 Filed 03/01/16 Page 6 of 8
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Phoenix, Arizona 85004-2202

602.382.6000

specific discovery as close as possible to the completion of commonissue discovery.

B. Remedies for Diminishment of Discovery Group and/or Bellwether

Group 1.

1. Should Plaintiffs withdraw, settle, or dismiss without prejudice a case

from Discovery Group 1, such case will be replaced. The party that

originally designated the eliminated case may select the replacement.

However, if the eliminated case was one of the four (4) cases chosen

by the Court, the Court will select the substitute cases from a list of

four (4) cases nominated by the parties (two from Plaintiffs and two

from Defendants).

2. Should Plaintiffs withdraw, settle, or dismiss without prejudice a case

from Bellwether Group 1, such case will be replaced by a case from

Discovery Group 1 selected by the Court from a list of four (4) cases

nominated by the parties (two from each side).

VI. Selection and Discovery of Future Discovery and Bellwether Groups.

A. When the Court deems it an appropriate time, and if the selection process,

number of cases, and discovery process utilized for Discovery Group 1 and/or

Bellwether Group 1 proves effective, the Court will employ the same method for

selecting future groups of cases for discovery and trial.

B. If the Court employs the same process, the parties will select a Discovery

Group 2, from the Initial Plaintiff Pool, except that the Initial Plaintiff Pool shall then

consist of additional cases, those cases on file in this action by a date agreed upon by the

parties or determined by the Court. With input from the parties, the Court will enter a

discovery schedule for the Discovery Group 2 cases.

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One Arizona Center, 400 E. Van Buren, Suite 1900

Phoenix, Arizona 85004-2202

602.382.6000

C. If the Court employs the same process, the parties will select a Bellwether

Group 2, from Discovery Group 2. With input from the parties, the Court will enter a

discovery schedule for the Bellwether Group 2 cases.

DATED this 1st day of March 2016.

GALLAGHER & KENNEDY, P.A.

By: s/ Robert W. Boatman

Robert W. Boatman (009619)

Paul L. Stoller (016773)

Shannon L. Clark (019708)

2575 East Camelback Road

Phoenix, Arizona 85016-9225

Ramon Rossi Lopez

(admitted pro hac vice)

CA Bar No. 86361

LOPEZ McHUGH LLP

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

Co-Lead/Liaison Counsel for

Plaintiffs

SNELL & WILMER L.L.P.

By: s/ Richard B. North, Jr.

James R. Condo

Amanda C. Sheridan

One Arizona Center

400 E. Van Buren, Suite 1900

Phoenix, Arizona 85004-2202

Richard B. North, Jr. (admitted pro hac vice)

Georgia Bar No. 545599

Matthew B. Lerner (admitted pro hac vice)

Georgia Bar No. 446986

Nelson Mullins Riley & Scarborough LLP

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

Attorneys for C. R. Bard, Inc. and Bard

Peripheral Vascular, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on March 1, 2016, the foregoing was electronically filed with

the Clerk of Court using the CM/ECF system which will automatically send email

notification of such filing to all attorneys of record.

s/ Nancy Jo Koenes

Case 2:15-md-02641-DGC Document 923 Filed 03/01/16 Page 8 of 8