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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 FOR LEAVE 

TO FILE UNDER SEAL CERTAIN 

EXHIBITS IN SUPPORT OF BARD’S 

REPLY IN SUPPORT OF MOTION TO 

EXCLUDE THE OPINIONS OF DAVID 

KESSLER, M.D. AND MEMORANDUM 

OF LAW IN SUPPORT 

I. INTRODUCTION 

Plaintiffs oppose C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.’s (Collectively 

referred to as “Bard”) Motion to Leave to Seal Certain Exhibits in Support of their Reply to 

Exclude Opinions of David Kessler, M.D. and request this Court refrain from sealing the 

information at issue as Defendants offer no sufficient justification to seal documents in this 

matter. 

Plaintiffs’ position here is the same as Plaintiffs set forth in their Opposition to 

Bard’s Request to Seal Plaintiffs’ Responses to Defendants’ Daubert Motions (Dkt. No. 

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8387 filed 10/24/17), Bard put the documents it seeks to seal at issue. Bard filed Daubert

motions and replies in every bellwether action against most of Plaintiffs’ experts, and 

Plaintiffs rely on these experts, including Dr. Kessler, 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 respond to defense motions seeking to defeat 

Plaintiffs’ causes of action and exclude Plaintiffs’ experts. Specifically, the schedules to 

Dr. Kessler’s report reflect the Rule 26(a)(2)(B) requirement that mandates an expert 

identify the facts or data considered in forming his opinions. 

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

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

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

products, and all patients implanted with a Bard IVC filter or who may be implanted with a 

Bard IVC filter. 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, particularly 

Dr. Kessler, reviewed and relied on many Bard internal documents which Bard did not 

provide to its own experts. 

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 documents; and (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 

documents. 

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II. ARGUMENT 

A. DEFENDANTS’ RELIANCE ON THE PROTECTIVE ORDER 

ALONE IS INSUFFICIENT 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, in any way, 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 an exhibit that Bard created which references cites in Dr. Kessler’s Report 

and Schedules to support their Motion to Exclude Plaintiffs’ Expert Dr. Kessler (here on 

after “Daubert motion”). Both of the cases Bard relies upon for support are factually 

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different than the issues before this Court; the motion before the court in Medics 

Pharmaceutical was a Motion for Attorney’s Fees and Other Expenses and before the 

Phillips court was a Motion to Compel a Settlement Agreement. See, Medicis Pharm. Corp. 

v. Acella Pharm., LLC, No. CV 10-1780-PHX-JAT, 2012 WL 2260928, at *2 (D. Ariz. June 

15, 2012). See also, Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206 

(9th Cir. 2002). Next, Bard presumes the Protective Order only affords protection for them 

and overlooks that the language of the Protective Order also provides relief to Plaintiffs; 

here, Plaintiffs rely on paragraph 22, “Challenges to Designation of Confidential 

Information,” to support this Opposition and to challenge the sealing of documents based 

on Bard’s failure to show “compelling reasons” balanced 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-J32JRK, 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

 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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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). 

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 Dr. Kessler to establish genuine issues of material facts “in 

connection with” Plaintiffs’ Omnibus Separate Statement of Facts in Support of Their 

Responses to Defendants’ Motions for Summary Judgments in the Bellwether Cases, 

(Dkt. 7950). Defendants’ Daubert Motion to Exclude Dr. Kessler is “aimed squarely at the 

other side’s damage methodology” and Plaintiffs’ depend on Dr. Kessler’s expert report, 

schedules, and testimony “in connection with” pending motions for summary judgments.3

 

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). 

3

 Also addressed in Plaintiffs’ Opposition to Bard’s Request to Seal Plaintiffs’ Responses 

to Defendants’ Daubert Motions for Plaintiffs experts Robert McMeeking, PhD. and Derek 

Muehrcke, M.D. (Dkt. No. 8387). 

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As such, 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 

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. 

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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 

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 Dr. Kessler nor has Bard shown that these documents 

contain trade secrets or confidential information. 

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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 cites from documents 

listed in Defendants’ Exhibit A related to Dr. Kessler. Bard generally claims that the 

information in Bard’s cited documents contain “dozens of confidential Bard documents, 

including technical and design files, testing documents, internal adverse event 

investigations and analysis, design and risk management documents, and numerous internal 

e-mails between high-level Bard employees.” (Dkt. 8232 at 3). Other than such vague 

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

from these 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 devoid of any supporting affidavits, declarations or other 

evidence.4

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 

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

 

4

 To date, Bard has only submitted one corporate witness declaration to support a Motion 

to Seal. For Bard’s Second Amended Motion to Seal Documents Filed in Support of Its 

Motion for Summary Judgment Regarding Preemption (Dkt. No 7853), Bard submitted the 

Declaration of Robert Carr; this declaration provided general statements and lacked both 

specific details demonstrating a genuine need for sealing and specific facts supporting the 

harm that may result as required by the Ninth Circuit. See, Kamakana at 1184. 

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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 Biocore, Bard has failed to provide anything 

beyond general and unsupported claims. 

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

to trial. Plaintiffs’ position is that Bard has not shown “compelling reasons” to the 

information contained in the Schedules, precisely Bard has 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. 

D. BARD’S DOCUMENTS CANNOT BE CHARACTERIZED AS TRADE 

SECRETS.

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

confidential information. Bard asserts that the “potential for abuse and for competitive harm 

is real.” The information contained in these documents has no inherent or intrinsic actual 

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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. 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 “compelling reasons” 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 

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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 1st day of November, 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 

I hereby certify that on this 1st day of November, 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 

Case 2:15-md-02641-DGC Document 8529 Filed 11/01/17 Page 11 of 11