Cabrera v. C R Bard Incorporated
2:19-cv-03569
D. Ariz.Oct 17, 2019Background
- MDL No. 15-02641 centralized >8,000 personal-injury actions alleging defects in Bard retrievable IVC filters (Recovery, G2, G2X, Eclipse, Meridian, Denali) and related failures to warn.
- The transferee court completed general common-fact and general expert discovery, held three bellwether trials (mixed verdicts), resolved many Daubert, summary‑judgment, and motion‑in‑limine issues, and closed the MDL May 31, 2019.
- With most common issues resolved and thousands of cases settled or near settlement, the court concluded many remaining cases no longer benefit from centralized proceedings.
- The court suggested remand under 28 U.S.C. § 1407(a) for the Schedule A case (Yates) and ordered transfer under 28 U.S.C. § 1404(a) of numerous direct‑filed cases (Schedule B) to the districts identified in the parties’ short‑form complaints; two Arizona cases were unconsolidated and left in D. Ariz. (Schedule C).
- The order summarizes MDL governance (CMOs, leadership, common‑benefit fund), what discovery was completed (general discovery complete; case‑specific discovery and expert discovery for listed cases deferred to receiving courts), and key evidentiary rulings to assist receiving courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suggestion of remand under §1407 | Cases ready for transfer back; individual issues remain | Centralization still useful for some cases | Transferee court suggested remand of Schedule A case to transferor (S.D. Ind.) because centralized benefits ended |
| Transfer of direct‑filed cases under §1404(a) | Transfer to identified districts is appropriate per short‑form complaints | Preserve right to renew venue/personal‑jurisdiction defenses after transfer | Court ordered transfer of Schedule B cases to districts listed in short‑form complaints; defendants may challenge venue/PD post‑transfer |
| Federal preemption (MDA / 21 U.S.C. §360k) | State law claims not preempted because Bard filters cleared via 510(k); no device‑specific federal requirements shown | MDA/510(k) preempts state claims or conflict preempts recovery | Court denied defendants’ summary judgment on preemption; 510(k) generally does not create device‑specific requirements that preempt state law (Lohr controls); defendants appealed |
| Admissibility of FDA evidence and adverse events (e.g., FDA warning letter, Recovery cephalad‑migration deaths) | Plaintiffs: FDA materials and some predicate‑device death evidence are relevant to design, state of mind, and punitive damages | Bard: FDA materials/older Recovery death evidence are unfairly prejudicial or hearsay | Court admitted limited FDA evidence (and redacted warning letter topics); admitted or excluded Recovery death evidence case‑by‑case balancing relevance vs. prejudice (varied by bellwether filter/model) |
Key Cases Cited
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (transferee court lacks authority to remand by transfer order; the Panel controls remand under §1407)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (510(k) clearance does not generally preempt state common‑law claims)
- In re Multi‑Piece Rim Prods. Liab. Litig., 464 F. Supp. 969 (J.P.M.L. 1979) (transferee court may suggest remand when cases no longer benefit from centralized pretrial proceedings)
- In re TMJ Implants Prods. Liab. Litig., 872 F. Supp. 1019 (D. Minn. 1995) (illustrative authority supporting suggestion of remand where individualized issues predominate)