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PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES

David R. Ongaro (State Bar No. 154698) 

dongaro@ongaropc.com 

Glen Turner (State Bar No. 212417) 

gturner@ongaropc.com 

ONGARO PC 

50 California Street, Suite 3325 

San Francisco, CA 94111 

Telephone: (415) 433-3900 

Facsimile: (415) 433-3950 

Attorneys for Plaintiff WAYNE RUDEN 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

IN RE: BARD IVC FILTERS 

PRODUCT LIABILITY LITIGATION, 

THIS DOCUMENT RELATES TO: 

WAYNE RUDEN, 

C. A. No.: CV-16-00344-PHX-DGC 

MDL Docket No. 15-02641 

WAYNE RUDEN, 

Plaintiff, 

vs. 

C.R. BARD, INC., a New Jersey 

corporation, BARD PERIPHERAL 

VASCULAR, INC., (a subsidiary and/or 

division of defendant C.R. BARD, INC.) 

an Arizona corporation, CALIFORNIA 

PACIFIC MEDICAL CENTER, and 

DOES 1-100 INCLUSIVE, 

Defendants. 

PLAINTIFF WAYNE RUDEN’S 

REPLY MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT OF 

MOTION FOR REMAND 

Complaint Filed: October 7, 2015 

*ORAL ARGUMENT REQUESTED* 

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PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES

TABLE OF CONTENTS 

I. INTRODUCTION...........................................................................1 

II. ARGUMENT.................................................................................1 

A. The Presence of a Proper California Defendant Destroys Diversity 

as Required For Removal..........................................................1 

1. Fraudulent Misjoinder is Not Accepted in This Circuit................2 

2. Jurisdictions that Accept Fraudulent Misjoinder Would Not 

Apply it Here................................................................3 

a. CPMC is a Necessary and Indispensable Party.................3 

b. Bard’s Separate Transaction or Occurrence Arguments 

Fail....................................................................4 

c. Bard’s Original-Complaint Removal Arguments Fail.........6 

d. Bard’s MDL-Transfer “Compelling” Argument Fails.........8 

B. Mr. Ruden Should Be Awarded Attorney’s Fees................................8 

III. CONCLUSION AND RELIEF REQUESTED..........................................9 

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PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES

TABLE OF AUTHORITIES 

Cases

Broadband iTV, Inc. v. Hawaiian Telcom, Inc., 

2014 WL 5580967, *2 (4 D. Haw. 2014) ................................................................................ 3 

Carper v. Adknowledge, Inc. 

2013 WL 5954898, *4 (N.D. Cal. 2013) ................................................................................. 3 

Dent v. Lopez 

2014 WL 3057456, *6 (E.D. Cal 2014) ................................................................................... 2 

Greene v. Wyeth 

344 F.Supp.2d 674 (D. Nev. 2004) .................................................................................. 2, 4, 5 

In re Guidant Corp. Implantable Defibrillators Products Liability Litigation 

2007 WL 2572048 (D. Minn. 2007) ........................................................................................ 5 

In re Rezulin Products Liability Litigation 

168 F.Supp.2d 136 (S.D. N.Y. 2001) ...................................................................................... 5 

Kruso v. International Telephone & Telegraph Corp. 

872 F.2d 1416 (9th Cir. 1989) .................................................................................................. 6 

Lopez v. Pfeffer 

2013 WL 5367723, *2 (N.D. Cal. 2013) ................................................................................. 2 

Moore-Thomas v. Alaska Airlines, Inc. 

553 F.3d 1241 (9th Cir. 2009) .................................................................................................. 6 

Ramirez v. Speltz 

2015 WL 5882065, *2 (N.D. Cal. 2015) ................................................................................. 5 

Richmond v. Lumisol Elec. Ltd. 

2014 WL 1716447, *3 (D. N.J. 2014) .................................................................................... 3 

Stonebrae, L.P. v. Toll Bros., Inc. 

2008 WL 2157000 ................................................................................................................... 6 

Sutton v. Davol 

251 F.R.D. 500 (E.D. Cal. 2008) ..................................................................................... 2, 5, 8 

Tapscott v. MS Dealer Service Corp. 

77 F.3d 1353 (11th Cir. 1996) .............................................................................................. 2, 4 

The Fair v. Kohler Die & Specialty Co., 

228 U.S. 22 (1913) ................................................................................................................... 3 

Umamoto v. Insphere Ins. Solutions, Inc. 

2013 WL 2084475, *6 (N.D. Cal. 2013) ................................................................................. 6 

Widder v. State Farm Fire & Cas. Co. 

2010 WL 4386698, *2 (E.D. Cal. 2010), ................................................................................. 7 

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Statutes

28 U.S.C. § 1441 ............................................................................................................................. 1 

28 U.S.C. § 1446(b) ........................................................................................................................ 2 

28 U.S.C. § 1447(c) ........................................................................................................................ 1 

Rules

Fed. R. Civ. Proc. 11(b) .................................................................................................................. 9 

Fed. R. Civ. Proc. 19(a)(1)(B) ........................................................................................................ 4 

Fed. R. Civ. Proc. 20 ....................................................................................................................... 6 

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CERTIFICATE OF SERVICE

I. INTRODUCTION 

Defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, 

“Bard”) improperly removed this matter from state court, where it belongs. Bard’s 

removal was based on a doctrine—fraudulent misjoinder—which has been thoroughly 

and consistently discredited in the Northern District, and was based on facts that even 

those scarce jurisdictions that embrace the doctrine would reject as insufficient. Further, 

in opposition to Mr. Ruden’s motion for remand, Bard misrepresents Mr. Ruden’s First 

Amended Complaint (“FAC”) to this Court, wrongly asserting that Mr. Ruden’s causes of 

action sound only in product liability. They do not. Bard mischaracterizes Mr. Ruden’s 

claims against CPMC as pertaining only to a 2010 FDA letter, when a full reading either 

of Mr. Ruden’s FAC or of his original Complaint shows allegations that CPMC is 

negligent for failing to discover and communicate its knowledge of the dangerous 

propensities of the Bard Recovery Filter (the “BRF”) prior to its recommendation for 

implantation in 2004, and then continuously from 2004 to 2010. 

Because this case was removed improperly, it should be remanded promptly so 

that it can seasonably progress. Further, Bard, on removal, failed to make a good-faith 

argument for the extension of the fraudulent misjoinder doctrine, instead presenting the 

discredited doctrine as if it were accepted law. Accordingly, Bard should be ordered to 

pay Mr. Ruden’s costs and fees incurred as a result of the improper removal as authorized 

by 28 U.S.C. § 1447(c). 

II. ARGUMENT 

A. The Presence of a Proper California Defendant Destroys Diversity as 

Required For Removal. 

Bard does not dispute three key points: (1) a state court case may not be properly 

removed to federal court when a non-diverse defendant is present (28 U.S.C. § 1441); (2) 

a state court case may not be properly removed to federal court unless all defendants 

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PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES

consent (28 U.S.C. § 1446(b)); and (3) CPMC is a non-diverse defendant which does not 

consent to removal. For these reasons alone, the case should be remanded to state court. 

Bard relies on a single theory, the theory of fraudulent misjoinder, to avoid the 

effects both of the presence of a non-diverse defendant, and of the decision by that 

defendant not to consent to removal. Bard claims that CPMC was fraudulently 

misjoined, and that therefore both their non-diversity and their non-consent may be 

disregarded. 

There are two serious problems with Bard’s argument. One is that the Ninth 

Circuit has never adopted the fraudulent misjoinder doctrine, and in fact district courts in 

the Ninth Circuit have rejected it in almost every case. The other is that even the few 

jurisdictions that have adopted the doctrine would not apply it in this instance, since 

Mr. Ruden’s claims against CPMC and some of his claims against Bard are closely 

related to the point of inter-dependence. CPMC’s presence in this matter utterly defeats 

both diversity and unanimous consent. 

1. Fraudulent Misjoinder is Not Accepted in This Circuit. 

As Mr. Ruden pointed out in his moving papers, Bard removed this matter “on law 

that does not exist in this district.” Lopez v. Pfeffer, 2013 WL 5367723, *2 (N.D. Cal. 

2013); accord Dent v. Lopez, 2014 WL 3057456, *6 (E.D. Cal 2014) (fraudulent 

misjoinder “is simply inoperative in this circuit.”); see Plaintiff’s opening memorandum 

at 5:17-7:1. Bard’s Opposition does not improve upon the law in its Notice of Removal, 

as it simply cites the same cases, Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 

1359-60 (11th Cir. 1996), Greene v. Wyeth, 344 F.Supp.2d 674, 683-84 (D. Nev. 2004), 

and Sutton v. Davol, Inc., 251 F.R.D. 500, 504 (E. D. Cal. 2008) that it cited there. Mr. 

Ruden already distinguished these cases in his moving papers. Plaintiff’s MPA, pp. 8:1-

9:5, 11:26-12:10, 12:27-13:7. 

The fraudulent misjoinder doctrine has been roundly criticized in this circuit 

because it essentially requires a federal court to decide a defendant’s motion to sever 

parties prior to inquiring into its own jurisdiction, as opposed to allowing a state court 

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PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES

which undoubtedly has jurisdiction over the parties to make such decisions. Carper v. 

Adknowledge, Inc., 2013 WL 5954898, *4 (N.D. Cal. 2013). While Bard argues (Opp’n 

MPA, p. 11:6-18) that it might still be unable to remove the matter even if CPMC’s 

claims were severed in state court, Bard’s essential complaint is merely that it “would be 

deprived of its right to a federal forum.” Id., p. 11:14-15. However, Bard has no such 

right because it is elementary that a plaintiff chooses the forum. The Fair v. Kohler Die 

& Specialty Co., 228 U.S. 22, 25 (1913). 

Bard does not and cannot dispute that neither the Ninth Circuit nor the District of 

Arizona (nor the original removal district, the Northern District of California) has 

adopted the fraudulent misjoinder doctrine. Opp’n MPA, p. 7:12-14. 

2. Jurisdictions that Accept Fraudulent Misjoinder Would Not 

Apply it Here. 

Mr. Ruden will not rehash all of the arguments in his moving papers, however, 

abundant facts exist demonstrating CPMC is a necessary and indispensable party. Not 

even the 11th Circuit, which is the only Circuit that recognizes fraudulent misjoinder,

would apply it under the facts of this case. Even the most forgiving of standards only 

apply the doctrine to parties that are actually “misjoined,” and not to proper parties in the 

case like CPMC. 

a. CPMC is a Necessary and Indispensable Party.

Fraudulent misjoinder, by definition, can only apply when a party is “misjoined,” 

meaning that the claims against it do not arise from the same transaction or occurrence as 

the claims against other defendants. See, e.g., Broadband iTV, Inc. v. Hawaiian Telcom, 

Inc., 2014 WL 5580967, *2-*3 (4 D. Haw. 2014), citing Richmond v. Lumisol Elec. Ltd., 

2014 WL 1716447, *3 (D. N.J. 2014) (surveying cases finding misjoinder because claims 

did not arise from same transaction or occurrence) (some citations omitted). Here, it is 

readily apparent that a relationship exists between defendants CPMC and Bard and 

between Plaintiff’s claims against the two entities, as Mr. Ruden pointed out at length in 

his opening papers. Plaintiff’s MPA, pp. 9:6-12:10. Bard manufactured a product and 

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released it into the stream of commerce, it was acquired by CPMC, and CPMC used as it 

was intended to be used, by implanting it into Plaintiff’s body, where it fractured, with a 

fragment entering Plaintiff’s heart. Both Bard and CPMC shared a joint duty to ensure 

that the Bard Recovery Filter (“BRF”) was safe for use by the end user. Bard had a duty 

to make the product’s dangerous propensities known to users and the general public and 

CPMC had a duty to learn of (or insure that its medical provider staff learned of) those 

same dangerous propensities, meaning that, at least to some extent, Bard’s and CPMC’s 

liabilities to the Plaintiff are measured by each other’s actions. Did Bard communicate 

what it had a duty to communicate? Did CPMC learn what it had a duty to learn? 

This is not a case that merely alleges that two defendants conduct a similar 

business practice, as in Bard’s case Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 

1359-60 (11th Cir. 1996), nor is it like Bard’s case Greene v. Wyeth, 344 F.Supp.2d 674, 

683-84 (D. Nev. 2004), where the majority of the plaintiffs had no relationship at all to 

the non-diverse defendants. Indeed, Bard itself would incur a substantial risk of incurring 

a double obligation should Plaintiff prevail against Bard in a federal suit while CPMC 

cross-claims against Bard in a state court suit, claiming that Bard hid the dangerous 

propensities of the BRF from CPMC. See Fed. R. Civ. Proc. 19(a)(1)(B). 

The question of what Bard told CPMC (and the public), and when it told it to 

them, is crucial to the resolution of the misrepresentation claims against both Bard and 

the CPMC. See Mr. Ruden’s MPA, pp. 10:3-12:10. This question crystallizes the 

interrelated nature of Plaintiff’s claims against Bard and CPMC. If Mr. Ruden is forced 

to pursue his claims against these two defendants separately in two different forums, 

judicial economy will suffer and there is a grave risk that Mr. Ruden will not receive 

justice in either forum. 

b. Bard’s Separate Transaction or Occurrence Arguments Fail. 

Bard’s denial of the fact that Mr. Ruden’s claims against CPMC are based on the 

same series of transactions and occurrences as his claims against Bard is primarily empty 

rhetoric, lacking factual analysis or citation to authority. See Opp’n MPA, p. 7:23-10:9. 

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To the limited extent that Bard does engage in factual analysis, it is misguided and 

misleading as it wrongly states that Mr. Ruden’s claims against Bard are limited to the 

manufacture, development, testing and marketing (with other related activities) of the 

BRF. Id., p. 8:6-8. Further, each of the authorities cited by Bard in this section – In re 

Guidant Corp. Implantable Defibrillators Products Liability Litigation, 2007 WL 

2572048 (D. Minn. 2007), In re Rezulin Products Liability Litigation, 168 F.Supp.2d 

136, 148 (S.D. N.Y. 2001), Greene v. Wyeth, 344 F.Supp.2d 674, 683-84 (D. Nev. 2004) 

and Sutton v. Davol, Inc., 251 F.R.D. 500 (E.D. Cal. 2008) – stand only for the 

proposition that product liability claims typically do not rise from the same transaction or 

occurrence as medical malpractice claims, an irrelevant point. Mr. Ruden’s claims 

against Bard are not limited to product liability, and his claims against CPMC are not

limited to medical negligence. Mr. Ruden’s FAC alleges negligent misrepresentation 

against Bard, and specifically that Bard “negligently provided Plaintiff, Plaintiff’s health 

care providers, and the general medical community with false or incorrect information” 

involving certain specified subject areas.” Declaration of Glen Turner (“Turner Decl.”), 

Exh. 1, FAC, ¶¶ 105-06; see also Id., Exh. 2, Mr. Ruden’s original Complaint filed with 

Bard’s Notice of Removal, ¶¶ 109-12. Bard also mischaracterizes Mr. Ruden’s claims 

against CPMC, which are not solely related to failure to communicate a 2010 letter, but 

also encompass the failure to communicate - or to insure that its medical staff was 

properly trained to learn of and then communicate - the growing evidence against the 

BRF from prior to its 2004 insertion to 2010 and afterward, which evidence CPMC and 

its agents should have learned from Bard and other sources. 

When Bard misstates the nature of Mr. Ruden’s Complaint and FAC by ignoring 

an entire cause of action, Bard misses the entire point—not to mention the law—which 

supports construing a complaint as broadly as possible in favor of remand. See, e.g., 

Ramirez v. Speltz, 2015 WL 5882065, *2 (N.D. Cal. 2015). The question of what Bard 

told CPMC (and the public), and when it told it to them, is absolutely crucial to the 

resolution of the misrepresentation claims against both Bard and the CPMC, as 

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Mr. Ruden pointed out at length in his opening papers. Plaintiff’s MPA, pp. 10:3-12:10. 

Bard did not address this argument in its opposition papers. Bard has no good answer to 

a question which closely knits together the liabilities of Bard and CPMC, such that 

severing Bard and CPMC into separate actions would raise a serious risk of inconsistent 

judgments. See Fed. R. Civ. Proc. 20 (permitting joinder when “any right to relief is 

asserted against them . . . arising out of the same . . . series of transactions or 

occurrences” and “any question of law or fact common to all defendants will arise in the 

action”) (emphasis added). 

c. Bard’s Original-Complaint Removal Arguments Fail. 

Although Bard argues that the propriety of removal is to be judged based on the 

original Complaint, fraudulent misjoinder is a branch of the fraudulent joinder doctrine 

and should only be applied when a plaintiff obviously cannot state a cause of action even 

after amending the complaint. See Plaintiff’s MPA, pp. 9:6-17 and fn. 3. Therefore, 

even if the Court considers the original Complaint, the FAC may serve as one example of 

how the original complaint could have been amended. 

Bard’s citation to Stonebrae, L.P. v. Toll Bros., Inc., 2008 WL 2157000, *4, 

misses the point entirely, as Stonebrae did not consider whether a complaint could be 

stated in that matter, but only whether a complaint was stated. Stonebrae’s holding was 

based entirely on a faulty reading of Kruso v. International Telephone & Telegraph 

Corp., 872 F.2d 1416, 1419-20 (9th Cir. 1989). Stonebrae at *4. 

Stonebrae’s cramped reading of the pertinent passage in Kruso differs from that 

followed by multiple other district courts because the Ninth Circuit in Kruso “emphasized 

the fact that the plaintiffs had not only failed to state a claim against the defendants but 

also could not have stated a claim under the circumstances of that case.” Umamoto v. 

Insphere Ins. Solutions, Inc., 2013 WL 2084475, *6-*7 (N.D. Cal. 2013) (discussing 

Kruso at 1426-27 and fn. 12 and holding, based on Moore-Thomas v. Alaska Airlines, 

Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) that remand was proper because “there is a nonfanciful possibility that Plaintiffs may be able to cure their failure to allege that Feeny 

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was the originator of the allegedly defamatory statement in an amended complaint”) 

(emphasis in original). The Umamoto court, citing Widder v. State Farm Fire & Cas. 

Co., 2010 WL 4386698, *2-*3 (E.D. Cal. 2010), explained that “district courts have 

considered Kruso and nevertheless remanded on the basis that the plaintiff may be able to 

cure deficiencies in previously alleged claims.” Umamoto at *7 and fn. 5. Therefore the 

Court should entertain not only acts or causes pled in the FAC but any acts or causes that 

could be pled, as Plaintiff made no new claims in the FAC. Further, a complaint must be 

strictly construed against removal, which strict construction would lead to the same 

result, i.e., consideration of hypothetical claims that could have been pled. Plaintiff’s 

MPA, pp. 9:6-17 and fn. 3. In any case, the claims in the original Complaint are plainly 

broader than Bard’s asserted explanation of them. 

Bard is simply incorrect when it asserts that plaintiff’s breach of fiduciary duty 

claims against CPMC in the original Complaint were limited to CPMC’s failure to inform 

plaintiff of a 2010 FDA Notification (Opp’n MPA, p. 8:8-14), and that plaintiff’s claims 

“do not relate to CPMC’s care and treatment of Plaintiff when he received his Bard IVC 

Filter in 2004.” Id., p. 4:4-6. Plaintiff’s original Complaint alleges that “at all times 

relevant to this cause,” Defendants negligently provided false or incorrect information 

or failed to disclose material information regarding the BRF. Turner Decl., Exh. 2, ¶ 109 

(emphasis added). Plaintiff also clearly alleged that CPMC created an ongoing duty at 

the time of device insertion in 2004 to warn the plaintiff of newly-discovered risks. Id., 

¶¶ 56, 57, 122. Paragraphs 113-118 of the Complaint allege that plaintiff’s health-care 

providers (e.g., CPMC) relied on Bard’s misrepresentations, which reliance led to 

plaintiff’s injuries. 

Obviously, plaintiff is not able to allege what exactly Bard misrepresented and 

omitted in its communications with CPMC and the public and when, and what exactly 

Bard informed CPMC of, and when. Finding that out is a large part of the point of this 

entire litigation. Plaintiff alleges he was not informed at any time between the insertion 

of the device in 2004 and its removal in 2015 of the continuing drip, drip of information 

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regarding the BRF’s dangerous propensities. That drip of information culminated in the 

2010 FDA Notification. It did not begin with that communication. 

Did Bard keep CPMC and the public fully informed as it learned of the BRF’s 

dangers, and was CPMC therefore guilty of breaching its duty to warn the plaintiff of 

newly-discovered risks? Did Bard hide the information it had a duty to divulge from 

CPMC and the public, leaving all the guilt on Bard’s head? Or did Bard hide some 

information and reveal other information, leading to a shared fault? Only a trial in which 

both of these defendants are joined – i.e., a state court trial – can fully and satisfactorily 

answer this question. 

d. Bard’s MDL-Transfer “Compelling” Argument Fails. 

Bard argues, without factual analysis, that the case for applying fraudulent 

misjoinder is “particularly `compelling’” when an MDL is pending. Bard’s MPA, pp. 

6:2-12. Bard’s entire argument is based on a single over-stated passage from Sutton v. 

Davol, 251 F.R.D. 500, 504 (E.D. Cal. 2008). 

The highly case-specific passage relied on – stating only that “[d]efendants’ 

[Davol’s] legal and factual position is compelling, especially in the context of 

MultiDistrict Litigation” - means only that the defendant in Davol had a compelling 

position under the facts of that case. Davol, which involved only product liability and 

medical negligence claims, and not the misrepresentation claims at issue here, says 

nothing at all about whether the doctrine of fraudulent misjoinder is more or less 

“compelling” in the MDL context. Id. There is no indication in the opinion that the 

Davol court dealt with any interrelated claims or any questions of inconsistent judgments, 

or that any party raised the presumptions against remand and in favor of a broad 

construction of pleadings. Davol does not control. 

B. Mr. Ruden Should Be Awarded Attorney’s Fees. 

In his moving papers, Mr. Ruden argued that he should be awarded attorney’s fees 

because Bard based its removal on a theory that is not accepted by the Ninth Circuit or 

the Northern District, and without acknowledging the existence of contrary authority. 

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Plaintiff’s MPA, pp. 13:25-15:1. Bard does not deny that it failed to acknowledge 

existing contrary authority or that it is sophisticated in removal law. 

As Mr. Ruden has demonstrated, abundant contrary authority exists in the Ninth 

Circuit – and particularly in the Northern District of California, to which Bard removed 

the matter - showing that fraudulent misjoinder is not an accepted theory, yet Bard 

couched its removal papers as if fraudulent misjoinder was good law. This could 

scarcely be considered “a nonfrivolous argument for extending, modifying, or reversing 

existing law or for establishing new law.” Fed. R. Civ. Proc. 11(b). 

Removal is an act by which a defendant can unilaterally stop a case in its tracks, 

and it is obviously important that such license should not be allowed to flourish 

unchecked. It is understandable that Bard wanted to move this case to the MDL; 

however, failing to obtain CPMC’s consent and using a doctrine that has specifically 

been rejected in this District should not be rewarded. This case has now been off the 

tracks for nearly four months, and Bard intentionally derailed it. By doing so, Bard cost 

Mr. Ruden and his counsel a great deal of time and money. It is just that Bard should pay 

for its intentional acts. 

III. CONCLUSION AND RELIEF REQUESTED

 Mr. Ruden respectfully requests that the Court grant his motion, remand the 

case to the San Francisco County Superior Court, and award $16,360 in attorney’s fees 

and costs. 

Dated: March 4, 2016 ONGARO PC 

By: /s/ Glen Turner 

 Glen Turner 

 Attorneys for Plaintiff 

 WAYNE RUDEN 

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CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of March, 2016, a copy of the foregoing was 

served electronically and notice of the service of this document will be sent to all parties 

by operation of the Court’s electronic filing system to CM/ECF participants registered to 

receive service in this matter. Parties may access this filing through the Court’s system. 

/s/Glen Turner 

 Glen Turner 

Case 2:15-md-02641-DGC Document 993 Filed 03/04/16 Page 14 of 14