Phillips v. C R Bard Incorporated
2:19-cv-02922
| D. Ariz. | Aug 20, 2019Background
- MDL consolidated >8,000 personal-injury suits (Bard IVC filters) in D. Ariz.; MDL closed to new cases May 31, 2019. Centralized common fact and general expert discovery finished; several bellwether trials held (three tried, others resolved or dismissed).
- Plaintiffs assert design-defect, failure-to-warn, and related state-law claims stemming from alleged tilting, perforation, fracture, and migration of Bard retrievable filters (Recovery, G2, G2X, Eclipse, Meridian, Denali). Defendants contest safety and causation, and raise venue and personal-jurisdiction defenses.
- Court concluded the MDL’s primary purposes (coordinated discovery and resolution of common issues) were fulfilled and recommended remand of Schedule A cases to transferor districts under 28 U.S.C. § 1407(a).
- Direct-filed cases (Schedule B) will be transferred under 28 U.S.C. § 1404(a) to the districts identified in plaintiffs’ short-form complaints (or other agreed venues), with defendants’ rights to raise venue and jurisdictional objections preserved for the receiving courts.
- The opinion summarizes extensive MDL rulings relevant to remanded/transferred cases: completion of common discovery, Daubert rulings, key motions in limine (FDA evidence, FDA warning letter, Recovery cephalad-migration death evidence), Lehmann report/work-product protection, and the Court’s denial of device preemption under the MDA for 510(k)-cleared devices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether transferee court should suggest remand of Schedule A cases | Cases not ready to settle centrally but plaintiffs want local resolution; argue inefficiency if remanded | MDL should retain control until case-specific issues resolved centrally | Court suggested remand: common discovery complete; remaining case-specific issues better handled by transferor courts; submits suggestion to JPML for remand under §1407(a) |
| Transfer of direct-filed (Schedule B) cases under §1404(a) | Plaintiffs chose transferee venues in short-form complaints; many agree those are proper | Defendants preserve venue/personal-jurisdiction objections and seek ability to litigate them after transfer | Court ordered transfers under §1404(a) to venues indicated (or agreed alternate implant venue), preserving defendants’ rights to raise venue/jurisdiction objections in receiving courts |
| Risk that venue/jurisdiction dismissals after transfer could bar timely-plaintiff re-filing (statutes of limitations) | Plaintiffs warn dismissal may time-bar refiling; urge MDL to decide jurisdiction before transfer | Defendants cite procedural posture and ask to preserve challenges on remand/transfer; MDL defers to receiving courts | Court concluded receiving courts may address jurisdiction; suggested receiving courts may transfer rather than dismiss under 28 U.S.C. §§1406(a), 1631 in interests of justice to avoid statute-of-limit problems |
| Whether plaintiffs’ state-law claims are preempted by the MDA for 510(k)-cleared devices | Plaintiffs contend 510(k) clearance focuses on equivalence and does not impose device-specific federal requirements that preempt state law | Bard argued express and conflict preemption because FDA review and communications created federal requirements or conflicts | Court denied defendants’ summary-judgment preemption motion: Medtronic v. Lohr remains good law; 510(k) clearance generally does not create device-specific federal requirements; defendants didn’t show impossibility or express preemption; defendants appealed |
Key Cases Cited
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (transferee judge may suggest remand but Panel decides remand under §1407)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (510(k) clearance does not generally preempt state-law claims because process focuses on equivalence)
- Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) (district court may transfer rather than dismiss when venue or jurisdiction defects would bar refiling)
- Calder v. Jones, 465 U.S. 783 (1984) (personal-jurisdiction analysis focuses on relationship among defendant, forum, and litigation)
- Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) (§1404(a) transfer analysis requires balancing multiple convenience and public-interest factors)