Thompson v. C R Bard Incorporated
2:16-cv-01351
D. Ariz.Aug 20, 2019Background
- MDL centralized over 8,000 product‑liability suits alleging C.R. Bard IVC filters (Recovery, G2, G2X, Eclipse, Meridian, Denali) are defectively designed and inadequately warned. 3 bellwether trials were held; many cases settled; thousands remain.
- Transferee court completed all common fact and general expert discovery and issued numerous pretrial rulings (Daubert, in limine, privilege, FDA‑evidence rulings).
- The court concluded many remaining cases no longer benefit from centralization and suggested remand of Schedule A cases to their transferor courts under 28 U.S.C. § 1407(a).
- Direct‑filed short‑form cases (Schedule B) were ordered transferred under 28 U.S.C. § 1404(a) to districts specified in the short form (or to agreed venues), preserving defendants’ venue and personal‑jurisdiction defenses for the receiving courts.
- The court denied general preemption at summary judgment (MDA/510(k) theory) and summarized key rulings to aid transferor/receiving courts (privilege/work‑product, Daubert, FDA warning‑letter admissibility, treatment of evidence of prior device deaths).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suggestion of remand of transferred (Schedule A) cases | Centralization still efficient; want uniform rulings | Cases no longer benefit from MDL; transferor courts should handle case‑specific issues | Court suggested Panel remand Schedule A cases under § 1407(a) because common discovery is complete and remaining issues are case‑specific |
| Transfer of direct‑filed (Schedule B) cases under § 1404(a) | Some plaintiffs argued post‑transfer venue/jurisdiction disputes are inefficient and risk statute‑of‑limitations loss | Defendants accept transfer but insist on preserving venue and personal‑jurisdiction defenses | Court ordered transfer per CMO 4 to districts identified in short forms (or agreed venues); preserved defendants’ rights to raise objections in receiving courts |
| Venue and personal jurisdiction challenges | Plaintiffs: transferring without resolving these now risks dismissals that could extinguish claims | Bard: preserve right to challenge forums where filters weren’t implanted; transferor court cannot decide § 1407 venue issues | Court declined to resolve venue/jurisdiction now; transferred/remanded cases and left challenges to receiving courts; emphasized receiving courts can transfer rather than dismiss to cure limitations concerns |
| Federal preemption under MDA (510(k)) | Plaintiffs: state law claims survive because 510(k) substantial‑equivalence review does not impose device‑specific federal requirements | Bard: state claims are preempted (express or implied) by federal device regulation | Court denied summary judgment on preemption, finding Medtronic/Lohr controls and defendants failed to show device‑specific federal requirements that would preempt state law claims |
Key Cases Cited
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (transferee court may suggest remand but the Panel controls remand under § 1407)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (510(k) clearance generally does not create federal requirements that preempt state common‑law claims)
- Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) (§ 1404(a) transfer and venue‑transfer factors require multi‑factor balancing)
- Calder v. Jones, 465 U.S. 783 (1984) (personal‑jurisdiction analysis focuses on relationships among defendant, forum, and litigation)
- Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) (when a court lacks jurisdiction it may transfer in the interest of justice rather than dismiss)