IN RE: Bard IVC Filters Products Liability Litigation, 603 F.Supp.3d 822

Background

MDL over Bard IVC filters transferred to D. Ariz. in 2015; >8,000 cases filed and many settled or remanded by MDL closure in May 2019.
Court issued CMO 6 creating a common-benefit fund and two escrow accounts funded by an 8% assessment (ultimately adjusted to 8% attorneys’ fees and 2% expenses by later order) on gross recoveries.
Participation Agreement (incorporated into CMO 6) allowed Participating Counsel access to MDL work product in exchange for agreeing assessments to apply to all cases in which they had a fee interest, including state-court, unfiled, tolled, and non-MDL federal cases.
BCM (Ben C. Martin / Martin|Baughman), a PSC/Participating Counsel member, extensively accessed MDL work product (including a secure trial package) and received common-benefit payments; BCM later settled >500 clients post-MDL.
BCM moved to exempt/reduce assessments for its clients’ recoveries from state-court, unfiled, and post-MDL federal cases and to cap assessments on its remanded cases; the Common Benefit Fee and Cost Committee and Bard opposed discovery and exemption.
Court denied BCM’s motion, concluding it had authority (inherent power and common-fund principles) to enforce CMO 6 and the Participation Agreement and that BCM and its clients benefitted from MDL work.

Issues

Issue	Plaintiff's Argument (BCM)	Defendant/Committee/Bard Argument	Held
Authority to impose assessments on recoveries outside the MDL (state, unfiled, post-MDL federal)	Court lacks power to reach non-MDL recoveries; Roundup supports narrow reach	Court has inherent managerial power plus equitable common-fund authority in MDL context; Participation Agreement binds signatories	Court held it has authority under inherent power and common-fund principles and may enforce CMO 6 against BCM and its clients
Enforceability of Participation Agreement terms against BCM and its clients	Participation Agreement shouldn’t reach unfiled/state cases or be enforceable against clients post hoc	BCM knowingly signed agreement incorporated in CMO 6, used MDL work product, and received common-benefit payments	Court enforced Participation Agreement as incorporated court order and bound BCM/clients to assessments
Request to reduce/cap assessments for BCM’s remanded/post-remand recoveries	BCM argues its post-remand work produced higher values and asks assessments be limited to portion "traceable" to MDL work or capped at average MDL-derived settlements	Committee: fixed percentage agreed at outset; impractical to parcel value between common and case-specific work; fairness and reliance on uniform assessment	Court denied reduction/cap or cap requests as impracticable and unfair given the agreed fixed-percentage scheme and reliance interests
Discovery into confidential settlements and escrow of assessments	BCM sought discovery of other confidential settlement amounts and requested escrow of challenged fees	Bard and Committee opposed discovery as harmful to confidentiality and unnecessary; opposed escrow	Court denied discovery and request to set aside/escrow the assessment

Key Cases Cited

In re Roundup Prods. Liab. Litig., 544 F. Supp. 3d 950 (N.D. Cal. 2021) (district court narrowly limited reach of MDL common-benefit assessments in that factual setting)
In re Genetically Modified Rice Litig., 764 F.3d 864 (8th Cir. 2014) (MDL statute is procedural; courts retain managerial powers in MDLs)
In re Showa Denko K.K. L-Tryptophan Prods. Liab. Litig., 953 F.2d 162 (4th Cir. 1992) (recognizing broad district-court discretion coordinating MDLs)
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (district court may enforce obligations incorporated into its orders)
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (federal courts possess inherent powers necessary to manage proceedings)
Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (courts’ inherent powers to manage their affairs)
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) (discussion of the common-fund doctrine and equitable fee recovery)