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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 JANUARY 19, 

2018 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 January 19, 2018 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 Darren R. Hurst, M.D. 

July 24, 2017 Derek D. Muehrcke, M.D. 

July 25, 2017 Christopher S. Morris, M.D. 

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

July 26, 2017 Kenneth Herbst, M.D. 

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

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

July 31, 2017 Moni Stein, M.D. 

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, M.D. 

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 Daniel Cousin, M.D. 

September 29, 2017 Piotr Sobieszczyk, M.D. 

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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. Summary Judgment and Daubert Motions

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

CMO 23 and this Court’s August 31, 2017, Order [Doc. 7368]. The Court has heard and 

submitted its rulings on the following motions argued on November 17, 2017 and December 

15, 2017. 

 Defendants’ Motion and Memorandum in Support of Motion for Summary 

Regarding Preemption 

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 Defendants’ Motion and Memorandum in Support of Motion for Partial 

Summary Judgment of Plaintiff SherrUna Booker’s Claims (Docs. 7456 and 

8163) 

 Defendants’ Motion and Memorandum in Support of Motion to Disqualify 

Robert Vogelzang, M.D. and Kush Desai, M.D. as Testifying Experts; and 

Scott Resnick, M.D. and Robert Lewandowski, M.D. as Consulting Experts 

for Plaintiffs (Docs. 6678, 7029, and 7058); 

 Defendants’ Motion and Memorandum in Support of Motion to Disqualify 

Thomas Kinney, M.D. as an Expert for Plaintiffs (Docs. 5677, 5803, and 

5879); 

 Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc.’s Motion and 

Incorporated Memorandum to Exclude (Daubert) the Opinions of David 

Kessler, M.D. and Memorandum of Law in Support (Docs. 7309 and 7805); 

 Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc.’s Motion and 

Incorporated Memorandum to Exclude (Daubert) the Opinions of Suzanne 

Parisian, M.D. and Memorandum of Law in Support (Docs. 7308 and 7814). 

 Defendants C. R. Bard, Inc.’s and Bard Peripheral Vascular, Inc.’s Motion to 

Exclude (Daubert) the Opinions of Thomas Kinney, M.D., Anne Christine 

Roberts, M.D., and Sanjeeva Kalva, M.D. and Memorandum of Law in 

Support (Docs. 7296, and 7812) 

In accordance with the Court’s Order dated January 4, 2018, Plaintiffs are ready to 

argue the following motions on January 19, 2018: 

1. Defendants C. R. Bard Inc.’s and Bard Peripheral Vascular, Inc.’s Motion to 

Exclude (Daubert) the Opinions of Derek R. Muehrcke, M.D. and 

Memorandum of Law in Support (Docs. 7304 and 7813) 

2. Defendants C. R. Bard Inc.’s and Bard Peripheral Vascular, Inc.’s Motion to 

Exclude (Daubert) the Opinions of Darren R. Hurst, M.D., and Supporting 

Memorandum of Law (Docs. 7302 and 7811); 

3. Defendants C. R. Bard Inc.’s and Bard Peripheral Vascular, Inc.’s Motion to 

Exclude (Daubert) the Opinions of Mark J. Eisenberg, M.D. and 

Memorandum of Law in Support (Docs. 7291 and 7810); 

4. Defendants C. R. Bard Inc.’s and Bard Peripheral Vascular, Inc.’s Motion to 

Exclude the Opinions of Rebecca Betensky, Ph.D. and Memorandum of 

Law in Support (Docs. 7288 and 7809); 

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IV. Pre-Trial Motion Practice 

A. Plaintiffs’ “Cisson FDA” Motion in Limine

Plaintiffs’ Position 

 Plaintiffs filed their “Cisson FDA” motion in limine seeking exclusion of certain 

FDA-related evidence in accordance with the Court’s Case Management Order No. 29 on 

January 2, 2018 (Doc. 9529). Plaintiffs request a date for oral argument at the Court’s 

earliest possible convenience in order to assist trial preparation. 

Defendants’ Position 

 The Defendants stand ready to present oral argument if the Court believes it would 

be beneficial. 

B. Plaintiffs’ Motion in Limine re: Non-Party Fault Specific to Booker

Plaintiffs’ Position 

 Plaintiff Booker intends to file a motion in limine to exclude certain evidence related 

to Defendants’ Notice of Non-Party Fault under O.C.G.A. § 51-12-33(d) filed on November 

13, 2017. Plaintiffs request relief from the current three page limit on motions in limine, 

and not to exceed five pages. 

Defendants’ Position 

 The Defendants have no objection to the Plaintiffs’ request. 

C. Defendants’ Motion in Limine 

Defendants’ Position 

 During the status conference held on November 17, 2017, the Court and the parties 

discussed motions in limine for the upcoming bellwether trials. At that time, the Plaintiffs 

indicated their desire to file one motion (referred to as the Cisson motion) exceeding the 

Court’s customary page limitations for motions in limine. In turn, the Defendants indicated 

that they also had one motion that they wished to file with an expanded page limitation. 

Thereafter, the Court entered Case Management Order No. 28 (Doc. No. 8871). In that 

order, the Court stated that “[e]ach side indicated that it wishes to file one motion in limine 

longer than 3 pages. Permission is granted for one such motion from each side.” 

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 In Case Management Order No. 29 (Doc. No.9415), the Court set a briefing schedule 

for the Plaintiffs’ “Cisson” motion, and established expanded page limitations for that 

motion. However, the Court did not mention or address in that order the motion in limine 

that the Defendants wish to file in excess of the Court’s customary page limitations. Bard 

respectfully requests that the Court provide it with the same expanded page limitations 

(including a short reply brief) afforded the Plaintiffs regarding their Cisson motion for one 

of its motions in limine. 

Plaintiffs’ Position 

 The Plaintiffs have no objection to applying the same protocol established for the 

Cisson motion to one of the Defendants’ motions in limine. 

 D. Motion for Bifurcation 

Plaintiffs’ Position 

 The decision to receive briefing and set scheduling on any matter is solely in the 

Court’s discretion. 

Defendants’ Position 

 Both of the initial two bellwether cases (Booker and Jones) will be governed by 

Georgia substantive law. Georgia’s punitive damages statute (O.C.G.A. sec. 51-12-5.1(d) 

and (e)) calls for a bifurcated proceeding when a claim for punitive damages is asserted. 

While the application of this statute in a federal court raises some complicated legal 

questions, at least two other MDL courts – in the context of trying bellwether cases premised 

on Georgia law – have applied the statute. See In re Mentor Corp. ObTape Transobturator 

Sling Prod. Liab. Litig., No. 3:07-CV-00101, 2010 WL 1998166, at *2 (M.D. Ga. May 18, 

2010); see also Cisson v. C. R. Bard, Inc., No. 2:11-CV-00195, 2015 WL 251437, at *4 

(S.D.W.Va. Jan. 20, 2015), aff’d sub nom. In re C. R. Bard, Inc., MDL No. 2187, Pelvic 

Repair Sys. Prod. Liab. Litig., 810 F.3d 913 (4th Cir. 2016). Bard therefore requests a 

briefing schedule for the filing of a motion to bifurcate to present this issue to the Court for 

decision. 

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 By way of background, Georgia law provides that, during the primary trial, “the trier 

of fact shall first resolve from the evidence produced at trial whether an award of punitive 

damages shall be made.” See O.C.G.A. sec. 51-12-5.1(d). If the trier of fact determines that 

there is clear and convincing evidence to support an award of punitive damages, a second 

phase of the trial is convened to “receive such evidence as is relevant to a decision regarding 

what amount of damages will be sufficient to deter, penalize, or punish the defendant in 

light of the circumstances of the case.” See O.C.G.A. sec. 51-12¬5.1 (e). Typically, that 

second phase (if held) is brief, involving short evidentiary presentations of a defendant’s 

net worth (or similar proof), and short additional arguments. 

 Bard asks that the Court establish a briefing schedule that will permit the parties to 

fully brief this issue prior to the pre-trial conference, with the expectation that the issue can 

be addressed at that time. 

 E. Discovery Relating to Second Phase of Trial 

Plaintiffs’ Position 

 Plaintiffs seek discovery to establish current evidence of defendants’ net worth and 

any other “such evidence as is relevant to a decision regarding the amount of damages will 

be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the 

case.” See O.C.G.A. sec. 51-12-5.1(e). 

 Said discovery would include requests for the following category of documents: 

General Ledgers, Income statements, Balance sheets, Annual reports, consolidated financial 

statements, including working copies, cash flow statements, and detail budget variance 

reports. Plaintiffs also seek an appropriate defendant representative be produced for a two 

hour deposition to inquire regarding said documents. 

 Plaintiffs seek this discovery prior to the start of the Booker bellwether trial as 

currently scheduled to commence on March 14, 2018. 

Defendants’ Position 

 The Defendants object to the Plaintiffs’ attempt to re-open fact discovery on the eve 

of the first bellwether trial. Under the applicable case management order, general fact 

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discovery closed on February 3, 2017. In turn, fact discovery specific to the five bellwether 

cases concluded in August of 2017. Despite those deadlines, and despite ample notice of 

the potential relevance of the information, the Plaintiffs waited until now to make their 

request. The Plaintiffs should not be permitted to disrupt the Defendants’ trial preparation 

efforts this close to trial, when they had ample past opportunities to accomplish the 

additional discovery they are now seeking. 

RESPECTFULLY SUBMITTED this 12th day of January 2018. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Mark S. 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 January 12, 2018, 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/ Gay Mennuti 

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