Scott v. C R Bard Incorporated
2:19-cv-01313
D. Ariz.Aug 20, 2019Background
- MDL centralized >8,000 personal-injury suits against C.R. Bard over retrievable IVC filters (Recovery, G2, G2X, Eclipse, Meridian, Denali); plaintiffs allege higher rates of tilt, perforation, fracture/migration and inadequate warnings.
- MDL was assigned to the District of Arizona in 2015; common fact and general expert discovery, multiple Daubert rulings, and three bellwether trials were completed by 2019; many cases settled but numerous individual-filed and transferred cases remain.
- The court concluded centralized purposes (common discovery, pretrial rulings, bellwether learning) were fulfilled and many remaining cases no longer benefit from MDL coordination.
- The opinion (Suggestion of Remand and Transfer Order) recommends (1) remand of cases originally transferred to the MDL (Schedule A) to their transferor courts under 28 U.S.C. § 1407(a) and (2) transfer of directly filed MDL cases (Schedule B) to districts identified in plaintiffs’ short-form complaints under 28 U.S.C. § 1404(a).
- The court preserved defendants’ rights to raise venue and personal-jurisdiction objections after remand/transfer and explained that remaining case-specific fact and expert discovery should occur in receiving courts; general MDL discovery (corporate, ESI, FDA materials, privilege rulings, and many trial rulings) is complete and will be transmitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MDL cases should be remanded under 28 U.S.C. § 1407(a) | Plaintiffs generally oppose remand where party disputes (venue/jurisdiction) remain, arguing efficiency favors resolving those in MDL | Bard argued remand appropriate for many cases and reserved venue/jurisdiction defenses upon remand | Transferee court suggests remand for Schedule A cases: common issues resolved; remaining case-specific issues better handled by transferor courts; Panel should order remand |
| Whether direct-filed MDL cases should be transferred under 28 U.S.C. § 1404(a) | Plaintiffs identified transferee districts in short-form complaints and want cases sent there; object to inefficiency of post-transfer jurisdictional resolution | Defendants do not oppose transfer but seek preservation of venue and personal-jurisdiction defenses | Court ordered transfer of Schedule B direct-filed cases to districts identified in short-form complaints; preserved defendants’ rights to challenge venue/jurisdiction in receiving courts |
| Handling of venue and personal-jurisdiction objections before transfer/remand | Plaintiffs urged resolving disputes in MDL to avoid statute-of-limitations problems and inefficiency | Defendants sought to preserve challenges and have issues resolved by receiving courts applying local law | Court held receiving courts should resolve venue and personal-jurisdiction issues; encouraged transfer rather than dismissal where interests of justice warrant to avoid statute-bar problems |
| Whether MDL rulings/record should be transmitted to receiving courts | Plaintiffs wanted full record; defendants agreed common record useful | Defendants also sought preservation of privilege and other protections | Court directed Clerk to transmit case files, master docket, and party-designated record on remand/transfer; summarized key CMOs, discovery status, privilege and Daubert rulings to aid receiving courts |
Key Cases Cited
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (transferee court may suggest remand but Panel has exclusive power under § 1407(a))
- 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) (same principle regarding remand when consolidation no longer useful)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (510(k) clearance generally does not preempt state-law product-liability claims)
- Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) (§ 1404(a) transfer analysis requires balancing multiple convenience and forum factors)
- Calder v. Jones, 465 U.S. 783 (1984) (personal-jurisdiction analysis focuses on relationship among defendant, forum, and litigation)
- Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) (district court may transfer rather than dismiss where interests of justice warrant to preserve plaintiffs’ ability to proceed)