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Ramon Rossi Lopez (admitted pro hac vice)

(CA Bar No. 86361)

LOPEZ McHUGH LLP

100 Bayview Circle, Suite 5600

Newport Beach, California 92660

rlopez@lopezmchugh.com

Mark S. O’Connor (011029)

GALLAGHER & KENNEDY, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000

mark.oconnor@gknet.com

Attorneys 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.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

IN RE: Bard IVC Filters Products Liability 

Litigation,

No. 2:15-MD-02641-DGC

THE PARTIES’ JOINT STATUS 

REPORT FOR THE NOVEMBER 17, 

2017 CASE MANAGEMENT 

CONFERENCE

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In accordance with Paragraph G of Case Management Order No. 27 [Doc. 8133], 

the Parties hereby submit their Joint Status Report for the November 17, 2017 Case 

Management Conference. 

I. Discovery

A. MDL Common Discovery

The Parties completed MDL common discovery on February 3, 2017. The 

following depositions have been completed:

December 15, 2015 30(b)(6) re FDA Warning Letter

January 11, 2016 Kay Fuller

January 20, 2016 Continued 30(b)(6) re FDA Warning Letter

March 18, 2016 30(b)(6) re corporate structure

April 27, 2016 30(b)(6) re ESI systems structure

May 3, 2016 Murray Asch, M.D. 

May 11, 2016 Carol Vierling

May 17, 2016 Anne Bynon

May 24, 2016 Len DeCant

June 2, 2016 John DeFord

June 9, 2016 Bret Baird

June 16, 2016 Robert DeLeon

June 17, 2016 Joe DeJohn

July 18, 2016 Abithal Raji-Kubba

July 27, 2016 Bill Little

July 27, 2016 Judy Ludwig

July 29, 2016 John Wheeler

August 9, 2016 Maureen Uebelacker

August 16, 2016 Daniel Orms

August 19, 2016 Mary Edwards

August 24, 2016 Cindi Walcott

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August 30, 2016 30(b)(6) re REACH program

September 7, 2016 Steve Williamson

September 7, 2016 30(b)(6) re Sales/Marketing

September 7, 2016 Kevin Shifrin

September 16, 2016 Jack Sullivan

September 19, 2016 Brian Doherty

September 23, 2016 Holly Glass

September 29, 2016 John Van Vleet 

October 11, 2016 Chris Ganser 

October 18, 2016 Natalie Wong

November 3, 2016 Jack Sullivan (continued)

November 11, 2016 Robert Cortelezzi

December 6, 2016 David Peeler, M.D.

January 4, 2017 John Kaufman, M.D.

January 18, 2017 Michael Randall - 30(b)(6) Meridian/Denali

January 18, 2017 Kim Romney

January 19, 2017 Robert Carr - 30(b)(6) Key Opinion Leaders

January 20, 2017 Scott Trerotola, M.D.

January 24, 2017 Scott Randall

January 25, 2017 Gary Cohen, M.D.

January 26, 2017 Chad Modra - 30(b)(6) Failure Rate Thresholds

January 26, 2017 Anthony Venbrux, M.D.

January 30, 2017 Frank Lynch, M.D.

January 31, 2017 Mark Wilson

February 1, 2017 William Stavropoulos, M.D.

February 2, 2017 Mike Randall 

February 2, 2017 Kevin Boyle

June 6, 2017 Rob Carr (Preemption Declaration)

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B. MDL Expert Disclosure and Discovery

Plaintiffs made their initial disclosures of expert witnesses on March 3, 2017, and 

their initial disclosures relating to the Meridian and Denali devices on April 7, 2017. 

Those disclosures included the following witnesses:

David W. Bates, M.D., MSc

Rebecca Betensky, Ph.D.

Mark J. Eisenberg, M.D.

David Garcia, M.D.

Steven M. Hertz, M.D.

Sanjeeva Kalva M.D.

David A. Kessler, M.D.

Thomas Kinney, M.D., M.S.M.E.

Robert M. McMeeking, Ph.D., NAE, FREng, FRSE, LFASME

Robert O. Ritchie, Ph.D.

Suzanne Parisian, M.D.

Anne Christine Roberts, M.D.

Michael B. Streiff, M.D.

Robert L. Vogelzang, M.D.

Defendants made their initial disclosures of expert witnesses on April 14, 2017, 

and their initial disclosures relating to the Meridian and Denali devices on May 12, 2017. 

Those disclosures included the following witnesses:

Christine L. Brauer, Ph.D.

Paul Briant, Ph.D., P.E.

Audrey A. Fasching, Ph.D., P.E.

David W. Feigal. Jr., M.D., M.P.H.

Clement J. Grassi, M.D.

Mark W. Moritz, M.D.

Christopher S. Morris, M.D.

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Frederick B. Rogers, M.D., FACS

Moni Stein, M.D., FSIR

Ronald A. Thisted, Ph.D.

Donna Bea Tillman, Ph.D., M.P.A.

Plaintiffs made their rebuttal disclosures of expert witnesses on May 12, 2017. 

Those disclosures included the following witnesses:

Rebecca Betensky, Ph.D.

Kush Desai, M.D.

Mark J. Eisenberg, M.D.

Steven M. Hertz, M.D.

Robert M. McMeeking, Ph.D.

Robert O. Ritchie, Ph.D.

Robert L. Vogelzang, M.D.

The following expert depositions have been taken:

May 9, 2017 David W. Bates, M.D., MSc (class-action)

May 16, 2017 Steven M. Hertz, M.D. (class-action)

May 17, 2017 Christopher S. Morris, M.D.

June 5, 2017 Robert L. Vogelzang, M.D.

June 6, 2017 Kush Desai, M.D.

June 9, 2017 Robert O. Ritchie, Ph.D.

June 15, 2017 Clement J. Grassi, M.D.

June 17, 2017 Thomas Kinney, M.D., M.S., M.E.

June 21, 2017 David L. Garcia, M.D.

June 21, 2017 Suzanne Parisian, M.D. 

June 21, 2017 Anne Christine Roberts, M.D.

June 23, 2017 Rebecca Betensky, Ph.D.

June 26, 2017 Audrey Fasching, Ph.D., PE

July 6, 2017 Mark J. Eisenberg, M.D., MPH, FACC, FAHA

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July 6, 2017 Robert M. McMeeking, Ph.D., NAE, FREng, 

FRSE, LFASME 

July 7, 2017 Anne Christine Roberts, M.D.

July 11, 2017 Sanjeeva Kalva, M.D.

July 12, 2017 Michael B. Streiff, M.D.

July 13, 2017 Paul Briant, Ph.D, PE 

July 18, 2017 Mark W. Moritz, M.D.

July 18, 2017 Frederick B. Rogers, M.D., MS, FACS

July 20, 2017 David W. Feigal, Jr., M.D., MPH 

July 21, 2017 Dr. Darren R. Hurst 

July 24, 2017 Dr. Derek D. Muehrcke 

July 25, 2017 Christopher S. Morris, MD 

July 26, 2017 J. Matthew Sims, MC, MS 

July 26, 2017 Dr. Kenneth Herbst 

July 28, 2017 Ronald A. Thisted, Ph.D.

July 31, 2017 David A. Kessler, M.D.

July 31, 2017 Moni Stein, MD 

August 2, 2017 Christine L. Brauer, M.D., Ph.D.

August 3, 2017 Paul Briant, Ph.D., PE 

August 3, 2017 Audrey Fasching, Ph.D. 

August 3, 2017 David S. Poll, MD 

August 4, 2017 Robert O. Ritchie, Ph.D. 

August 4, 2017 Donna Bea Tillman, Ph.D.MPA, FRAPS

August 16, 2017 Lora K. White, RN, BSN, CCM, CNLCP 

August 25, 2017 Dr. Daniel Cousin 

September 29, 2017 Dr. Piotr Sobiesczyk 

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C. Barazza Class Action Discovery 

The Parties completed the depositions of the named plaintiffs. The following 

depositions were taken: 

October 19, 2016 Diane Washington

October 28, 2016 James Holt

November 10, 2016 Gregory Lester

November 16, 2016 Maria Barazza

November 30, 2016 Edward Mims

December 1, 2016 Nancy Mosher

December 6, 2016 Thomas Flournay

December 6, 2016 Delmar Lee Peck

December 15, 2016 Denise Tomlin

January 24, 2017 John Van Vleet

February 27, 2017 Linda Walker

May 11, 2017 Ana Hernandez

The Parties designated and disclosed experts on class certification issues, including 

Plaintiffs’ rebuttal expert reports. Many of those class certification experts were also the 

same experts in the general MDL and were deposed at the same time for both the MDL 

and the class action.

D. Bellwether Group 1 Depositions

1. Fact Discovery

In addition to the numerous fact witness depositions taken by the Parties before the 

last status conference, the Parties have scheduled or have already taken the following fact 

witness depositions in the five bellwether cases since that status conference:

May 31, 2017 Angelic Thompson (Mulkey)

May 31, 2017 Lorelie Thompson (Mulkey)

May 31, 2017 Torin Walters, M.D. (Mulkey)

June 1, 2017 Pho Nguyen, M.D. (Mulkey)

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June 15, 2017 Brandon Kang, M.D. (Booker)

June 20, 2017 Richard Harvey, M.D. (Booker)

June 26, 2017 Eric Hairston (Booker)

June 27, 2017 Brody Puckett (Kruse, postponed due to illness)

July 7, 2017 Amy Sparks, M.D. (Hyde)

July 11, 2017 Colleen Taylor, M.D. (Jones)

July 12, 2017 Aaron Donner (Mulkey)

August 3, 2017 Chris Smith (Jones)

August 15, 2017 Bryan Vogel (Booker and Kruse)

August 23, 2017 Tim Hug (Hyde)

Per CMO 25 (Doc. 6227), the deadline for deposing medical witnesses (treating 

physicians) was August 7, 2017, and the deadline for deposing all other fact witnesses was 

August 15, 2017.

2. Case-Specific Expert Disclosures and Discovery

On June 5, 2017, Plaintiffs disclosed case-specific expert reports by the following 

expert witnesses in all five bellwether cases:

Darren Hurst, M.D.

Derek D. Muehrcke, M.D.

On June 5, 2107, Plaintiffs disclosed the case-specific expert report of David 

Garcia, M.D. in the Jones bellwether case.

On June 9, 2017, in accordance with the agreement of the Parties, Plaintiffs 

disclosed case-specific expert reports by Robert M. McMeeking, Ph.D., NAE, FREng, 

FRSE, LFASME in all five bellwether cases.

On June 12, 2017, in accordance with the agreement of the Parties, Plaintiffs 

disclosed case-specific expert reports by the following expert witnesses in all five 

bellwether cases:

Robert O. Ritchie, Ph.D.

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J. Matthew Sims, MC, MS & Lora K. White, RN, BSN, CNLCP, CCM, 

MSCC

On July 3, 2017, Defendants disclosed case-specific expert reports for the 

following expert witnesses: 

Kenneth D. Herbst, M.D.

Mark W. Moritz, M.D.

Christopher S. Morris, M.D.

Moni Stein, M.D., FSIR

On July 13, 2017, in accordance with agreement of the parties, Defendants 

disclosed case-specific expert reports for the following expert witnesses: 

Audrey A. Fasching, Ph.D.

Paul Briant, Ph.D

Daniel Cousin, M.D.

David Poll, M.D.

Piotr Sobieszczyk, M.D.

All general MDL deposition discovery and all depositions related to the initial five 

bellwether cases have been completed (subject to this Court’s resolution of the disputes 

identified below). 

II. Science Day Procedure

The Parties made their Science Day presentations on October 5, 2019 as described 

in CMO 27.

III. Bellwether Trials Issues 

In paragraph H of CMO 26, the Court advised the Parties that it will, at the 

upcoming status conference, address the scheduling of bellwether trials. At the October 5,

2017 CMC the Court selected the initial order of the Group I bellwether trials and 

scheduled them as reflected in paragraph C of CMO 27. The parties note their respective 

positions on those issues below. 

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Plaintiffs’ Position

Plaintiffs will be prepared to discuss with the Court issues relating to the setting of 

the bellwether cases for trial, specifically “stacking” or “next case up” approach similar to 

that which is being followed in the Arizona state court consolidated Bard IVC cases. See

Exhibit A, paragraph A, page 2. This approach will ensure a true bellwether process, that 

is, if a case is resolved, the next-trial ready case will be tried in that slot. For example, the 

Court has set the Booker trial starting March 13, 2017. In the event it settles, the Jones 

case will take the March 13, 2017 slot. This approach will also ensure judicial economy.

Plaintiffs also request a discussion regarding the following bellwether trial issues: 

1. Scheduling of Jones Pre-Trial Motions – specifically, the schedule for 

Jones-specific motions to be heard in advance of the March 13, 2017 trial 

slot in the event that the Booker case resolves.

2. The balance of Group 1 bellwether cases – specifically, regarding keeping 

the balance of the Group 1 bellwether cases trial-ready in the event that 

Booker and Jones cases resolve prior to the currently slated March 13th trial 

date.

3. The balance of Group 2 bellwether cases – specifically, a schedule to 

complete discovery in the following Discovery Phase 1 bellwether cases to 

ensure the readiness for trial in 2018: Mixson, Tinlin, Peterson, Nelson, 

Dewitt.

4. The ten (10) Mature/Early Remand cases – specifically, Plaintiffs request 

that completion of discovery in these previously identified “mature cases” is 

scheduled so that they may be ready for remand back to their transferor 

jurisdictions once all Daubert rulings have been issued by this Court listed 

below:

1. Cason, Pamela

2. Coker, Jennifer

3. Ebert, Melissa

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4. Fox, Susan

5. Henley, Angela

6. Keen, Harry

7. Ocasio, Denise

8. Rivera, (McClarty), Vicki

9. Smith, Erin

10. Tillman, Leslie

Defendants’ Position

Bard responds to the Plaintiffs’ suggestions, as follows:

(a) The March 13th Trial Setting: As a general concept, Bard does not 

necessarily oppose the notion of “stacking” the Booker and Jones cases, i.e. 

having the Jones case prepared to proceed to trial if the Booker case resolves on 

that date. However, as a practical matter, Bard is concerned that such a 

schedule may not be feasible for the parties and particularly the Court. There 

are already numerous Daubert motions that need to be heard and decided before 

the Booker case commences trial, and some of those motions will not be heard 

until mid-January. There is also a motion for summary judgment motion in 

Booker to be decided. In addition, there will be a number of motions in limine 

filed by both sides to be decided prior to the beginning of trial. To achieve the 

“stacking” the Plaintiffs are requesting would require the Court to resolve a 

second set of motions in limine (some of which will be duplicative but many of 

which will not) and the Jones summary judgment motion by the same date. 

Such an aggressive schedule may not be feasible for either the parties or the 

Court.

(b) The “Second” Group of Bellwether Cases: The Plaintiffs unilaterally refer to 

the cases not chosen for the initial bellwether group as a “second” group of 

bellwether cases. However, that group of cases has never been designated by 

the Court or any of the past Case Management Orders as a second group of 

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bellwether cases. To the contrary, many of those cases (including some cases 

selected by Plaintiffs and some cases selected by Bard) were ultimately rejected 

as bellwether cases because they were not sufficiently representative of the 

MDL inventory or because they had “outlier” facts. Bard believes it would be 

contrary to the entire purpose of the bellwether process (i.e, the trial of 

representative cases to permit the assessment of case values) to now restore 

those cases to bellwether status.

That said, Bard agrees that it would be prudent to have a second set of 

bellwether cases trial-ready by late 2018. To that end, Bard would suggest that 

the parties meet and confer about a proposed case management order detailing 

that selection process, and submit that proposed order to the Court on or before 

December 1, 2017.

(c) “Mature” Cases: Bard agrees that some additional discovery remains to be 

completed in the “mature” cases before they are ready for trial. The question is 

whether that discovery should be undertaken now or after the cases are 

remanded (presumably in the Spring of 2018 after the Daubert motions have 

been decided). The discovery remaining to be accomplished in these cases is 

all case-specific. Hence, Bard believes that the discovery should be undertaken 

once the cases are remanded and the cases are returned to the jurisdiction of the 

judges who will preside over the trials of those cases. Those judges will all 

likelihood be unable to provide the parties with immediate trial dates after 

remand, and as a result, there will be ample time then to complete the targeted 

amount of discovery that remains to be accomplished. Given that fact, Bard 

believes there is no need to distract the parties (and even this Court, if disputes 

arise) with conducting this discovery while final preparations are being made 

for the first MDL bellwether trial.

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IV. Summary Judgment and Daubert Motions

The Parties have filed their Daubert and summary judgment motions in accordance 

with CMO 23 and this Court’s August 31, 2017, Order [Doc. 7368]. A schedule for 

Daubert and Summary Judgment arguments to be heard has been submitted to the Court in 

accordance with CMO 27. The Court has since altered the schedule sua sponte due to 

changes in its schedule. The parties are ready to argue the Defendants’ Motion for 

Summary Judgment as to Federal Preemption and Defendants’ Motion for Summary 

Judgment in the Booker case on November 17, 2017.

Plaintiffs’ Position

Plaintiffs request a revised schedule for the motions to be heard at the December 

15, 2017 hearing. 

Defendants’ Position

Bard will be ready to discuss the Court’s scheduling preferences for the remaining 

motions.

V. Motions in Limine

Historically the parties have submitted generic and case-specific pre-trial motions 

in limine for pre-trial rulings. 

Plaintiffs’ Position

1. Plaintiffs request a schedule for pre-trial motions in limine including (1) a date 

by which the parties will identify and confer about disputed evidentiary issues 

that they anticipate will be the subject of motions in limine, and (2) deadlines 

for filing and responding. 

2. One of the generic motions in limine that Plaintiffs intend to file will be their 

“Cisson FDA” motion seeking exclusion of certain FDA-related evidence1

. 

 1 This issue was recently addressed by the Eleventh Circuit in Eghnayem v. Boston 

Scientific, Inc., 2017 WL 4681345, at *6 (11th Cir. Oct. 19, 2017), and previously by the 

Fourth Circuit in In re C.R. Bard, Inc., MDL. No. 2187, Pelvic Repair Sys. Prods. Liab. 

Litig., 810 F.3d 913 (4th Cir. Jan. 14, 2016). This issue was also recently addressed in the 

Cook IVC Filter MDL. (See, Doc. 8032). 

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Plaintiffs request an early ruling on their “Cisson FDA” motion in limine as this 

ruling will affect both parties’ trial preparation with regard to which witnesses 

will be called and for how long, as well as which portions of video-taped 

depositions will be/can be played at trial. Plaintiffs are prepared to file this 

motion within five (5) days of this Court’s ruling on the matter.

Defendants’ Position

Bard will be prepared to discuss the Court’s preferences for the handling of 

motions in limine. Bard is concerned, however, about the Plaintiffs’ effort to expedite 

that process, simply because of the number of summary judgment and Daubert motions 

that have to be addressed first. In the event the Court decides to entertain the Plaintiffs’ 

“Cisson” motion at an earlier stage, Bard also has one motion in limine it would like to 

file at that time because of its similar potential impact on trial preparation. 

VI. Trial Readiness

Plaintiffs’ Position

Plaintiffs request the Court establish a schedule for lead trial counsel to meet and 

confer about trial and evidentiary issues including witness availability and other potential 

scheduling conflicts, and other uniform preparation between the parties of certain pre-trial 

matters that may affect the Court’s scheduling of bellwether trials. Other subjects for the 

meeting should include master uniform exhibits lists, trial time per side, live versus video 

testimony, pre-admitted evidence.

Defendants’ Position: The plaintiffs have raised the issue of a meeting between 

counsel at past conferences, and Bard’s counsel has repeatedly indicated a willingness to 

meet with the Plaintiffs’ counsel to discuss trial logistics. However, Bard is uncertain as 

to what the Plaintiffs are referencing when they mention “other uniform preparation 

between the parties of certain pre-trial matters that may affect the Court’s scheduling of 

bellwether trials.” It is Bard’s understanding that the Court has scheduled two bellwether 

trials, and will schedule others, and it should be incumbent on the parties to be prepared 

for those dates.

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Respectfully submitted this 14th day of November 2017. 

GALLAGHER & KENNEDY, P.A.

By: s/ Mark O’Connor

Mark S. O’Connor (011029)

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

Attorneys for Plaintiffs 

SNELL & WILMER L.L.P.

By: s/ Richard B. North

James R. Condo (005867)

Amanda C. Sheridan (027360)

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 November 14, 2017, 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/Wendy Espitia

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