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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: Bard IVC Filters Products Liability 

Litigation, 

No. MDL 15-02641-PHX DGC 

CASE MANAGEMENT ORDER 

NO. 29 

The Court held a thirteenth case management conference on December 15, 2017. 

The conference occurred after oral argument on various expert motions, and addressed 

ongoing matters identified in the parties’ joint report. Doc. 9245. 

A. Motion Hearings.

In preparation for the hearing to be held on January 19, 2018 at 1:00 p.m., the 

Court will attempt to prepare for the motions related to experts Muehrcke, Hurst, 

Eisenberg, Betensky, and McMeeking. See Doc. 8172. The Court will decide, without 

oral argument, the motions related to experts Morris, Grassi, Garcia/Streiff, and the use 

of criminal law standards. This will leave the Ritchie motion to be heard. The parties 

should confer and decide whether one of the five motions scheduled for January 19 or the 

Ritchie motion can be decided without oral argument. If so, an additional hearing will 

not be needed. The Court likely will rule on the motion for summary judgment in the 

Jones case after the bellwether trial in the Booker case. 

B. Scheduling of Bellwether Trials.

The Booker bellwether trial will begin on March 14, 2018. This is a day later than 

originally scheduled and is necessitated by the Court’s schedule. The trial must be 

completed by March 30, 2018, as the Court is fully committed the week of April 2, 2018. 

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The Court will allot 27 hours of trial time to Plaintiffs and 25 hours to Defendants. 

This time will be counted against opening and closing statements, direct examination, and 

cross-examination. The Court will advise the parties of the time they have used each day 

at noon and at the end of the day. 

C. Jury Questionnaire.

The Court plans to seat nine jurors. The parties have submitted a proposed jury 

questionnaire. The Court will review the proposal and decide whether a questionnaire 

should be used and, if so, the form of the questionnaire. 

D. Motion to Certify Appeal.

Defendants ask the Court to certify its order on Defendants’ preemption motion 

for summary judgment, dated November 22, 2017, for interlocutory appeal under 28 

U.S.C. § 1292(b). Doc. 9244. The parties and the Court discussed this motion at the 

December 15 conference. 

A district court may certify an order for interlocutory appeal if it (1) involves a 

controlling question of law (2) as to which there is a substantial ground for difference of 

opinion and (3) an immediate appeal from the order may materially advance the ultimate 

termination of the litigation. 28 U.S.C. § 1292(b). Although Defendants’ preemption 

argument, if accepted, would constitute a controlling ruling of law, the Court cannot 

conclude that there is substantial ground for difference of opinion or that an immediate 

appeal would materially advance the ultimate termination of this litigation. 

For reasons stated in its order (Doc. 8872), the Court finds that Plaintiffs’ claims 

are not preempted. The Court does not view this as a close question. Although some 

jurists have expressed concern about confusion in preemption law, this fact does not, in 

the Court’s view, leave the issue addressed in the Court’s ruling open to substantial 

question. 

Further, the Court cannot conclude that an immediate appeal of its order would 

materially advance the ultimate termination of cases in this MDL. As mentioned during 

the conference, the Court certified an issue to the Ninth Circuit in August 2015. See 

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Smilovits v. First Solar Inc., 119 F. Supp. 3d 978, 1011 (D. Ariz. 2015). The Court of 

Appeals accepted review in November 2015, but no decision has been issued. This level 

of delay is typical of matters addressed in the docket-heavy Ninth Circuit. The Court 

concludes that there is little prospect that certification of this issue would result in an 

appellate decision in time to aide in the termination of this litigation. This is true 

particularly in light of the fact that Defendants hope to pursue this issue to the Supreme 

Court, a process that would take even longer. 

E. Cisson Motion.

Plaintiffs seek leave to file a motion to preclude Defendants from presenting FDArelated evidence at trial. Doc. 9245 at 12. Plaintiffs may file the motion by 

January 3, 3018. Defendants shall respond by January 17, 2018, and Plaintiffs shall 

reply by January 26, 2018. The motion and response may be 10 pages long, the reply 5 

pages. 

F. Next Case Management Conference.

The Court will hold another case management conference after the motions 

hearing on January 19, 2018 at 1:00 p.m.. The parties shall file a joint status report five 

days prior to the conference. 

IT IS ORDERED that Defendants’ motion to certify the Court’s preemption 

order for interlocutory appeal under 28 U.S.C. § 1292(b) (Doc. 9244) is denied. 

Dated this 21st day of December, 2017. 

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