1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 IN RE: Bard IVC Filters Products No. MDL 15-02641-PHX-DGC Liability Litigation, 11 _________________________________ 12 13 Maria Alarcon, an individual, No. CV-17-00197-PHX-DGC

14 Plaintiff, 15 v. TRANSFER ORDER 16 C. R. Bard, Inc., a New Jersey corporation; and Bard Peripheral 17 Vascular, Inc., an Arizona corporation, 18 Defendants. 19 20 21 This multidistrict litigation proceeding (“MDL”) involves personal injury cases 22 brought against Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. 23 (collectively, “Bard”). Bard manufactures and markets medical devices, including 24 inferior vena cava (“IVC”) filters. The MDL Plaintiffs received implants of Bard IVC 25 filters and claim they are defective and caused Plaintiffs to suffer serious injury or death. 26 The MDL was transferred to this Court in August 2015 when 22 cases had been 27 filed. Doc. 1. More than 8,000 cases had been filed when the MDL closed on May 31, 28 2019. Docs. 18079, 18128. 1 Thousands of cases pending in the MDL have settled. See Docs. 16343, 19445, 2 19798, 21167, 21410. The remaining cases no longer benefit from centralized 3 proceedings. Since August 2019, the Court has suggested the remand of more than 100 4 cases that were transferred to this MDL by the United States Judicial Panel for 5 Multidistrict Litigation (the “Panel”), and has transferred to appropriate districts more 6 than 2,500 cases that were directly filed in the MDL. See Docs. 19899, 20672, 21462, 7 21589, 21820, 22036. 8 The Court erroneously dismissed one case, Alarcon v. C. R. Bard, Inc., No. CV- 9 17-00197, as duplicative. Doc. 21461. The Clerk’s Office has reopened the case. Doc. 10 22108. Counsel for Plaintiff Alarcon has informed the Court that the case has not settled 11 and remains pending. The Court will transfer the case to the United States District Court 12 for the Central District of California, Los Angeles Division. 13 I. Transfer Under 28 U.S.C. § 1404(a). 14 A. Transfer Standard. 15 Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in 16 the interest of justice, a district court may transfer any civil action to any other district or 17 division where it might have been brought or to any district or division to which all 18 parties have consented.” 19 B. The Direct-Filed Alarcon Case Will Be Transferred. 20 Not all MDL cases were transferred to the Court by the Panel. Pursuant to Case 21 Management Order No. 4 (“CMO 4”), many cases were filed directly in the MDL 22 through use of a short form complaint. Doc. 363 at 3 (amended by Docs. 1108, 1485). 23 Plaintiffs were required to identify in the short form complaint the district where venue 24 would be proper absent direct filing in the MDL. See id. at 7. CMO 4 provides that, 25 upon the MDL’s closure, each pending direct-filed case shall be transferred to the district 26 identified in the short form complaint. Id. at 3. 27 Plaintiff Alarcon’s short-form complaint states that she is a California resident and 28 that she resided there at the time of her implant and alleged injuries. No. CV-17-00197, 1 Doc. 1 at 2. The complaint identifies the Central District of California, Los Angeles 2 Division, as the District and Division in which venue would be proper absent direct 3 filing. Id. at 2. Pursuant to § 1404(a), the Court will transfer Plaintiff’s case to that 4 District and Division. See In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., 5 No. 3:12-MD-2391, 2018 WL 7683307, at *1 (N.D. Ind. Sept. 6, 2018) (transferring 6 cases under § 1404(a) where they would “no longer benefit from centralized 7 proceedings[] and the remaining case-specific issues are best left to decision by the courts 8 that will try the cases”). Defendants’ right to challenge venue and personal jurisdiction 9 upon transfer is preserved. See Docs. 19899 at 4-6, 20672 at 4, 21426 at 4. 10 II. The MDL Proceedings. 11 A summary of the MDL proceedings is provided below to assist courts receiving 12 transfers under § 1404(a). CMOs, discovery orders, and other significant rulings are 13 listed in Exhibit 1. See Doc. 21727-1. Exhibits admitted at the bellwether trials are listed 14 in Exhibit 2. See Doc. 21727-2. The status of the remaining case-specific discovery and 15 other pretrial issues in individual cases should be addressed by the courts receiving the 16 cases on remand or transfer. 17 A. Plaintiffs’ Claims and the Pleadings. 18 The IVC is a large vein that returns blood to the heart from the lower body. An 19 IVC filter is a small device implanted in the IVC to catch blood clots before they reach 20 the heart and lungs. This MDL involves multiple versions of Bard’s retrievable IVC 21 filters – the Recovery, G2, G2X, Eclipse, Meridian, and Denali. These filters are 22 umbrella-shaped devices that have multiple limbs fanning out from a cone-shaped head. 23 The limbs consist of legs with hooks that attach to the IVC wall and curved arms to catch 24 or break up blood clots. Each of these filters is a variation of its predecessor.1 25 26 1 In early 2019, Defendants moved to expand the scope of the MDL to include cases concerning Bard’s Simon Nitinol Filter (“SNF”), a permanent device that predated 27 the other IVC filters in this litigation. The Panel denied the motion as moot because more than 80 SNF cases already had been filed in the MDL. None of the SNF cases are 28 subject to this order. 1 The MDL Plaintiffs allege that Bard filters are more dangerous than other IVC 2 filters because they have higher risks of tilting, perforating the IVC, or fracturing and 3 migrating to vital organs. Plaintiffs further allege that Bard failed to warn patients and 4 physicians about these higher risks. Defendants dispute these allegations, contending 5 that Bard filters are safe and effective, that their complication rates are low and 6 comparable to those of other IVC filters, and that the medical community is aware of the 7 risks associated with IVC filters. 8 CMO 2, entered October 30, 2015, required the creation of a master complaint, a 9 master answer, and templates of short-form complaints and answers. Doc. 249 at 6. The 10 master complaint and answer were filed December 12, 2015. Docs. 364, 366. They are 11 the operative pleadings for most of the cases in this MDL. 12 The master complaint gives notice, pursuant to Rule 8, of the allegations that 13 Plaintiffs assert generally. The master complaint contains seventeen state law claims: 14 manufacturing defect (Counts I and V); failure to warn (Counts II and VII); design defect 15 (Counts III and IV); failure to recall (Count VI); misrepresentation (Counts VIII 16 and XII); negligence per se (Count IX); breach of warranty (Counts X and XI); 17 concealment (Count XIII); consumer fraud and deceptive trade practices (Count XIV); 18 loss of consortium (Count XV); and wrongful death and survival (Counts XVI and XVII). 19 Doc. 364 at 34-63. Plaintiffs seek both compensatory and punitive damages. Id. at 63. 20 Plaintiff-specific allegations are contained in individual short-form complaints or 21 certain complaints served on Defendants before the filing of the master complaint. See 22 Docs. 249, 363, 365. Plaintiffs also provided Defendants with profile forms and fact 23 sheets that describe their individual claims and conditions. See Doc. 365. 24 B. Case Management Orders. 25 The primary orders governing pretrial management of this MDL are a series 26 of CMOs, along with certain amendments. To date, the Court has issued 49 CMOs. 27 These orders are discussed below and can be found on this District’s website at http:// 28 www.azd.uscourts.gov/case-info/bard. 1 C. Lead Counsel. 2 CMO 1, entered October 30, 2015, appointed Co-Lead/Liaison Counsel for 3 Plaintiffs (“Lead Counsel”) to manage the litigation on behalf of Plaintiffs, and set out 4 the responsibilities of Lead Counsel. Doc. 248. Plaintiffs’ Lead Counsel has changed 5 since the inception of the MDL. Mr. Ramon Lopez, of Lopez McHugh, LLP, in Newport 6 Beach, California, and Mr. Mark O’Connor, of Beus Gilbert PLLC, in Phoenix, Arizona, 7 are now Lead Counsel for Plaintiffs. Doc. 5285. Mr. Richard North of Nelson Mullins 8 Riley & Scarborough, LLP, in Atlanta, Georgia, is Defendants’ Lead Counsel. 9 D. Plaintiffs’ Steering Committee and Common Benefits Fund. 10 CMO 1 directed the selection and appointment of a Plaintiffs’ Steering Committee 11 (“PSC”) to assist in the coordination of pretrial activities and trial planning. Plaintiffs’ 12 Lead Counsel and the PSC together form the Plaintiffs’ Leadership Counsel (“PLC”). 13 The PLC assists all Plaintiffs in the MDL by overseeing discovery, appearing in court, 14 attending status conferences, and preparing motions and responses regarding case-wide 15 discovery matters. CMO 1 has been amended to select and appoint a Plaintiffs’ 16 Executive Committee (“PEC”) to assist Lead Counsel in the administration, organization, 17 and strategic decisions of the PLC. Doc. 4016. The configuration of the PSC has 18 changed during the course of the litigation. See Docs. 248, 4016, 5285. 19 CMO 6, entered December 18, 2015, set forth rules, policies, procedures, and 20 guidelines for fees and expenses incurred by attorneys acting for the common benefit of 21 all MDL Plaintiffs. Doc. 372. In May 2019, the Court increased the common benefit 22 attorneys’ fees assessment from 6% to 8%, but declined to increase the 3% assessment 23 for costs. Doc. 18038. 24 Upon remand or transfer, individual Plaintiffs likely will be represented by their 25 own counsel – the attorney or attorneys who filed their original complaint. Plaintiffs’ 26 Lead Counsel, the PSC, the PLC, and the PEC were tasked with managing the MDL for 27 Plaintiffs, not the individual cases on remand or transfer. 28 1 E. Status Conferences. 2 Since the inception of the MDL, the Court has held regular status conferences with 3 Lead Counsel for the parties to discuss issues related to the litigation. The initial case 4 management conference was held in October 2015. Doc. 246. Deadlines were set for, 5 among other things, the filing of master and short-form pleadings, profile forms, a 6 proposed protective order (including Rule 502 provisions), a proposed protocol 7 governing the production of electronically stored information (“ESI”), as well as 8 deadlines to complete first-phase MDL discovery and address privilege log issues. 9 Doc. 249. Thereafter, the Court held periodic status conferences to ensure that the parties 10 were on task and to address routine discovery issues and disputes. In addition to the 11 status conferences, the Court conducted telephone hearings to address time-sensitive 12 issues, as well as numerous additional conferences to consider various matters such as 13 general case management issues, dispositive motions, the bellwether trial process, and the 14 settlement process. 15 F. Discovery. 16 1. General Fact Discovery. 17 Prior to the establishment of this MDL, Plaintiffs’ counsel had conducted 18 substantial discovery against Bard concerning all aspects of Bard IVC filters, including 19 the design, testing, manufacturing, marketing, labeling, and post-market surveillance of 20 the devices. Bard produced numerous documents and ESI and responded to thousands of 21 written discovery requests, and more than 80 corporate witness depositions were taken. 22 The pre-MDL fact discovery was made available by Bard to all Plaintiffs in the MDL. 23 CMO 8 established a procedure concerning re-deposing witnesses in the MDL. 24 Doc. 519. CMO 14 established deposition protocols generally. Doc. 2239. The Court 25 allowed additional depositions of a handful of corporate witnesses that had been 26 previously deposed, as well as numerous depositions of other Bard corporate witnesses, 27 including several Rule 30(b)(6) depositions. Docs. 3685, 4311. CMO 9 governed the 28 production of ESI and hard-copy documents. Doc. 1259. 1 Discovery in the MDL was separated into phases. The parties completed the first 2 phase of MDL discovery in early 2016. Doc. 519. The first phase included production of 3 documents related to an FDA inspection and warning letter to Bard, an updated 4 production of complaint and adverse event files, and an updated version of Bard’s 5 complaint database relating to IVC filters. Doc. 249. Plaintiffs also conducted a Rule 6 30(b)(6) deposition concerning the FDA inspection and warning letter, and a deposition 7 of corporate witness Kay Fuller. 8 The parties completed the second phase of fact discovery in February 2017. 9 CMO 8 set deadlines for the second phase, which included all common fact and 10 expert issues in the MDL, but not case-specific issues to be resolved after remand or 11 transfer. Docs. 249, 519. Second-phase discovery included extensive additional 12 discovery related to Bard’s system architecture for ESI, Bard’s ESI collection efforts, ESI 13 relating to Bard’s IVC filters, and Bard’s national and regional sales and marketing 14 practices. Plaintiffs also deposed two corporate witnesses in connection with Kay 15 Fuller’s allegations that a submission to the FDA regarding the Recovery filter did not 16 bear her original signature. Doc. 1319 (CMO 10). Plaintiffs deposed additional 17 corporate witnesses concerning the FDA inspections and warning letter. Id. 18 Bard also produced discovery regarding the sales and marketing materials related 19 to the SNF, documents comparing filter performance and failure rates to the SNF, and 20 internal and regulatory communications relating to the SNF. Docs. 1319, 10489. The 21 Court denied Plaintiffs’ request to obtain ESI discovery from Bard’s overseas operations. 22 Doc. 3398. The Court also denied Defendants’ request to discover communications 23 between Plaintiffs’ counsel and NBC news related to stories about the products at issue in 24 this litigation, and third-party financing that may be in place with respect to MDL 25 Plaintiffs. Docs. 3313, 3314. Plaintiffs were required to produce communications 26 between Plaintiffs and the FDA related to the FDA warning letter, but the Court denied 27 Defendants’ request to depose Plaintiffs’ counsel regarding these communications. 28 1 Docs. 3312, 4339. Defendants also produced punitive damages discovery, and Plaintiffs 2 conducted a Rule 30(b)(6) deposition related to Bard’s net worth. 3 All common fact discovery has now been completed, including preservation 4 depositions for certain witnesses who will not be traveling to testify live at the trials of 5 remanded and transferred cases. See Docs. 16343, 19959, 21063. Thus, courts receiving 6 these cases need not be concerned with facilitating general fact discovery on remand or 7 transfer. 8 2. Case-Specific Discovery. 9 CMO 5 governed initial case-specific discovery and required the parties to 10 exchange abbreviated profile forms. Doc. 365 (as amended by Doc. 927). Plaintiffs were 11 required to provide Defendants with a Plaintiff profile form (“PPF”) that described 12 individual conditions and claims. Id. at 5-9. Upon receipt of a substantially complete 13 PPF, Defendants were required to provide the individual Plaintiff with a Defendants’ 14 profile form (“DPF”) that disclosed information and documents concerning Defendants’ 15 contacts and relationship with Plaintiff’s physicians, tracking and reporting of Plaintiff’s 16 claims, and certain manufacturing related information for Plaintiff’s filter. Id. at 12-14. 17 Completed profile forms were considered interrogatory answers under Rule 33 or 18 responses to requests for production under Rule 34, and were governed by the standards 19 applicable to written discovery under Rules 26 through 37. Id. at 2-3. CMO 5 also set 20 deadlines and procedures for resolving any purported deficiencies with the parties’ 21 profile forms, and for dismissal of cases that did not provide substantially completed 22 profile forms. Id. at 2. The Court has dismissed certain cases where Plaintiffs failed to 23 provide complete PPFs. See Docs. 19874, 20667, 21461, 21579. 24 Further discovery was conducted in a group of 48 cases (“Group 1”) selected for 25 consideration in the bellwether trial process from the pool of cases filed and properly 26 served on Defendants in the MDL as of April 1, 2016 (“Initial Plaintiff Pool”). 27 Docs. 1662, 3214, 4311 (CMOs 11, 15, 19). Plaintiffs in Group 1 were required to 28 provide Defendants with a Plaintiff fact sheet (“PFS”) that described their individual 1 conditions and claims in greater detail, and provided detailed disclosures concerning their 2 individual background, medical history, insurance, fact witnesses, prior claims, and 3 relevant documents and records authorizations. Docs. 1153-1, 1662 at 3. 4 Upon receipt of a PFS, Defendants were required to provide the individual 5 Plaintiff with a Defendants fact sheet (“DFS”) that disclosed in greater detail information 6 concerning Defendants’ contacts and relationship with Plaintiff, Plaintiff’s physicians, or 7 anyone on behalf of Plaintiff, Defendants’ tracking and reporting of Plaintiff’s claims, 8 sales and marketing information for the implanting facility, manufacturing information 9 for Plaintiff’s filter, and other relevant documents. Docs. 1153-2, 1662 at 3. Completed 10 fact sheets were considered interrogatory answers under Rule 33 or responses to requests 11 for production under Rule 34, and were governed by the standards applicable to written 12 discovery under Rules 26 through 37. Doc. 1662 at 3. CMO 11 set deadlines and 13 procedures for resolving any purported deficiencies with the parties’ fact sheets. Id. 14 at 2, 4-5. CMO 12 governed records discovery for Group 1. Doc. 1663. The parties 15 agreed to use The Marker Group to collect medical, insurance, Medicare, Medicaid, 16 prescription, Social Security, workers’ compensation, and employment records for 17 individual plaintiffs from third-parties designated as custodians for such records in the 18 PFS. Id. at 1. 19 From Group 1, twelve cases were selected for further consideration as bellwether 20 cases (“Discovery Group 1”). Docs. 1662, 3685, 4311 (CMOs 11, 18, 19). CMO 20 set 21 deadlines for preliminary case-specific discovery in that group. Doc. 4335. Pursuant to 22 the protocols set in CMOs 14 and 21, the parties were permitted to depose each Plaintiff, 23 his or her spouse or a significant family member, the implanting physician, an additional 24 treating physician, and either a Bard sales representative or supervisor. Docs. 2239, 4866 25 at 1-2. From Discovery Group 1, six Plaintiffs were selected for potential bellwether 26 trials and further case-specific discovery (“Bellwether Group 1”). Docs. 1662, 3685, 27 4311, 5770, 11659 (CMOs 11, 18, 19, 23, and 34). 28 1 Except for the 48 cases in Group 1, the parties did not conduct case-specific fact 2 discovery for the cases listed on Schedules A and B during the MDL proceedings, other 3 than exchanging abbreviated profile forms. The Court concluded that any additional 4 case-specific discovery in these cases should await their remand or transfer. Thus, courts 5 receiving these cases should set a schedule for the completion of case-specific discovery. 6 3. Expert Discovery. 7 CMO 8 governed expert disclosures and discovery. Doc. 519. The parties 8 designated general experts in all MDL cases and case-specific experts in individual 9 bellwether cases. General expert discovery closed July 14, 2017. Doc. 3685 (CMO 18). 10 The parties did not conduct case-specific expert discovery for the cases listed on 11 Schedules A and B during the MDL proceedings. The Court concluded that case-specific 12 expert discovery in these cases should await their remand or transfer. Thus, courts 13 receiving these cases should set a schedule for the completion of case-specific expert 14 discovery. 15 4. Privileged Materials. 16 CMO 2 required Defendants to produce privilege logs in compliance with the 17 Federal Rules of Civil Procedure. Doc. 249. The parties were then required to engage in 18 an informal privilege log meet and confer process to resolve any privilege disputes. 19 Defendants produced several privilege logs identifying documents withheld pursuant to 20 the attorney-client privilege, the work-product doctrine, and other privileges. The parties 21 regularly met and conferred regarding the privilege logs and engaged in negotiations 22 regarding certain entries identified by Plaintiffs. As part of that meet and confer process, 23 Defendants provided Plaintiffs with a small number of these identified items for 24 inspection and, in some cases, withdrew certain claims of attorney-client privilege and 25 produced the previously withheld items. 26 CMO 3 governed the non-waiver of any privilege or work-product protection in 27 this MDL, pursuant to Federal Rule of Evidence 502(d), by Defendants’ disclosure or 28 1 production of documents on its privilege logs as part of the meet and confer process. 2 Doc. 314. 3 In late 2015, Plaintiffs challenged a substantial number of documents on 4 Defendants’ privilege log. The parties engaged in an extensive meet and confer process, 5 and Defendants produced certain documents pursuant to the Rule 502(d) order. See id. 6 Plaintiffs moved to compel production of 133 disputed documents. The Court granted 7 the motion in part. Doc. 2813. The parties identified several categories of disputed 8 documents and provided sample documents for in camera review. The Court denied 9 Plaintiffs’ motion with respect to seven of eight categories of documents and found only 10 one of the sample documents in one of the categories to contain unprivileged portions 11 that should be produced. The Court found all other documents protected by the attorney- 12 client privilege or work product doctrine. The Court directed the parties to use this ruling 13 as a guide to resolve remaining privilege disputes. 14 Since this ruling, there have been no further challenges to Defendants’ privilege 15 logs. Defendants continued to provide updated privilege logs throughout the discovery 16 process, and the parties met and conferred to resolve privilege disputes. Privilege issues 17 should not be a concern for courts that receive these cases. 18 5. Protective Order and Confidentiality. 19 A stipulated protective order governing the designation, handling, use, and 20 disclosure of confidential discovery materials was entered in November 2015. Doc. 269. 21 CMO 7, entered January 5, 2016, governed redactions of material from additional 22 adverse event reports, complaint files, and related documents in accordance with the 23 Health Insurance Portability Act of 1996 (“HIPAA”) and under 21 C.F.R. § 20.63(f). 24 Doc. 401. 25 In September 2016, to expedite production of ESI, the parties agreed to a primarily 26 “no-eyes-on” document production as to relevancy while still performing a privilege 27 review for this expedited ESI document production. CMO 17 (Doc. 3372) modified the 28 protections and requirements in the stipulated protective order (Doc. 269) and CMO 7 1 (Doc. 401) for ESI produced pursuant to this process. CMO 17 was amended in 2 November 2016. Doc. 4015. 3 Defendants filed a motion to seal certain trial exhibits at the conclusion of the first 4 bellwether trial. Doc. 11010. The Court denied this motion and Defendants’ subsequent 5 motion for reconsideration. Docs. 11642, 11766, 12069. Defendants also filed a motion 6 to enforce the protective order for the second and third bellwether trials collectively. 7 Doc. 13126. This motion was denied. Doc. 14446. A list of exhibits admitted at the 8 bellwether trials (excluding case-specific medical records) and documents deemed no 9 longer subject to the protective order are attached as Exhibit 2. See Doc. 21727-2. 10 G. Bellwether Cases and Trials. 11 Six Plaintiffs were selected for potential bellwether trials. Docs. 5770, 11659 12 (CMOs 23, 34). The Court held three bellwether trials: Booker, No. CV-16-00474, 13 Jones, No. CV-16-00782, and Hyde, No. CV-16-00893. The Court granted summary 14 judgment in one of the bellwether cases, Kruse, No. CV-15-01634, and removed another 15 from the bellwether trial schedule at the request of Plaintiffs, Mulkey, No. CV-16-00853. 16 Docs. 12202, 13329. The final bellwether case, Tinlin, No. CV-16-00263, settled shortly 17 before trial in May 2019. The Court determined that further bellwether trials were not 18 necessary. Docs. 12853, 13329 (CMOs 38, 40). 19 1. Booker, No. CV-16-00474. 20 The first bellwether trial concerned Plaintiff Sherr-Una Booker and involved a 21 Bard G2 filter. The filter had tilted, migrated, and fractured. Plaintiff required open 22 heart surgery to remove the fractured limbs and repair heart damage caused by a 23 percutaneous removal attempt. Plaintiff withdrew her breach of warranty claims before 24 Defendants moved for summary judgment. The Court granted Defendants’ motion for 25 summary judgment on the claims for manufacturing defects, failure to recall, 26 misrepresentation, negligence per se, and breach of warranty. Docs. 8873, 8874; see In 27 re Bard IVC Filters Prods. Liab. Litig., No. CV-16-00474-PHX-DGC, 2017 WL 28 5625548 (D. Ariz. Nov. 22, 2017). The remaining claims for failure to warn, design 1 defect, and punitive damages were tried to a jury over a three-week period in March 2 2018. 3 The jury found for Plaintiff Booker on her negligent failure-to-warn claim, and in 4 favor of Defendants on the design defect and strict liability failure-to-warn claims. 5 Doc. 10595. The jury returned a verdict of $2 million in compensatory damages (of 6 which $1.6 million was attributed to Defendants after apportionment of fault) and 7 $2 million in punitive damages. Id.; Doc. 10596. The Court denied Defendants’ motions 8 for judgment as a matter of law and a new trial. Docs. 10879, 11598; see In re Bard IVC 9 Filters Prods. Liab. Litig., No. CV-16-00474-PHX-DGC, 2018 WL 3037161 (D. Ariz. 10 June 19, 2018). 11 Defendants appealed, arguing that the Court erred by denying summary judgment 12 on their preemption defense, that a failure-to-warn claim was unavailable, and that the 13 award of punitive damages was not supported by the evidence. See Docs. 11934, 11953. 14 The Ninth Circuit affirmed. Docs. 21555, 21632; see In re Bard IVC Filters Prods. Liab. 15 Litig., 969 F.3d 1067 (9th Cir. 2020). The Ninth Circuit denied Defendants’ petition for 16 panel rehearing and rehearing en banc. See No. 18-16349, Doc. 84.2 17 2. Jones, No. CV-16-00782. 18 The second bellwether trial concerned Plaintiff Doris Jones and involved a Bard 19 Eclipse filter. Plaintiffs withdrew the manufacturing defect, failure to recall, and breach 20 of warranty claims. The Court granted summary judgment on the misrepresentation, 21 negligence per se, and unfair trade practices claims. Doc. 10404; see In re Bard IVC 22 Filters Prods. Liab. Litig., No. CV-16-00782-PHX-DGC, 2018 WL 1256768 (D. Ariz. 23 Mar. 12, 2018). The remaining claims for failure to warn, design defect, and punitive 24 damages were tried to a jury over a three-week period in May 2018. The jury returned a 25 defense verdict. Doc. 11350. Plaintiff filed a motion to contact the jurors, which was 26

27 2 Plaintiff filed and later dismissed with prejudice a cross-appeal. Docs. 12070, 28 17916. 1 denied. Docs. 11663, 12068. 2 Plaintiff appealed the Court’s rulings excluding cephalad migration death 3 evidence. See Docs. 12057, 12071, 21554, 21610, 21656. The Ninth Circuit affirmed 4 those rulings. Docs. 21544, 21656; see In re Bard IVC Filters Prods. Liab. Litig., 816 F. 5 App’x 218 (9th Cir. 2020). The Ninth Circuit denied Plaintiff’s petition for rehearing en 6 banc. See No. 18-16461, Doc. 54. 7 3. Kruse, No. CV-15-01634. 8 Plaintiff Carol Kruse’s case was set for trial in September 2018. The Court 9 granted Defendants’ summary judgment motion on statute of limitations grounds. 10 Doc. 12202; see In re Bard IVC Filters Prods. Liab. Litig., No. CV-15-01634-PHX- 11 DGC, 2018 WL 3957737 (D. Ariz. Aug. 17, 2018). 12 4. Hyde, No. CV-16-00893. 13 The third bellwether trial concerned Plaintiff Lisa Hyde and involved either a Bard 14 G2X or Eclipse filter (the exact model was in dispute). Ms. Hyde’s case was moved to 15 the September 2018 bellwether slot in lieu of Ms. Kruse’s case. Doc. 11867. Plaintiffs 16 withdrew their claims for manufacturing defect and breach of express warranty. The 17 Court granted summary judgment on the claims for breach of implied warranty, failure to 18 warn, failure to recall, misrepresentation, concealment, and fraud. Doc. 12007; see In re 19 Bard IVC Filters Prods. Liab. Litig., No. CV-16-00893-PHX-DGC, 2018 WL 3586404 20 (D. Ariz. July 26, 2018). The Court also entered judgment in favor of Defendants on the 21 negligence per se claim after concluding that it was impliedly preempted under 21 U.S.C. 22 § 337(a). Doc. 12589; see In re Bard IVC Filters Prods. Liab. Litig., No. CV-16-00893- 23 PHX-DGC, 2018 WL 4356638 (D. Ariz. Sept. 12, 2018). The remaining claims for 24 design defect, loss of consortium, and punitive damages were tried to a jury over three 25 weeks in September 2018. After the close of Plaintiffs’ evidence, the Court granted in 26 part Defendants’ motion for judgment as a matter of law with respect to future damages 27 for any cardiac arrhythmia Ms. Hyde may experience, but denied the motion as to the 28 remaining claims. Doc. 12805; see In re Bard IVC Filters Prods. Liab. Litig., No. CV- 1 16-00893-PHX-DGC, 2018 WL 4742976 (D. Ariz. Oct. 2, 2018). The jury returned a 2 defense verdict. Doc. 12891. Plaintiff voluntarily dismissed her appeal. See Docs. 3 13465, 13480, 21732. 4 5. Mulkey, No. CV-16-00853. 5 Plaintiff Debra Mulkey’s case involved an Eclipse filter and was set for trial in 6 February 2019. Before trial, Plaintiffs asked the Court to remove the Mulkey case from 7 the bellwether trial schedule because it was similar to the Jones and Hyde cases and 8 would not provide meaningful information to the parties. Doc. 12990. The Court 9 granted the motion. Doc. 13329. 10 6. Tinlin, No. CV-16-00263. 11 The final bellwether trial concerned Plaintiff Debra Tinlin and involved a Bard 12 Recovery filter. Plaintiffs withdrew their claims for manufacturing defect, failure to 13 recall, negligence per se, and breach of warranty. The Court granted summary judgment 14 on the misrepresentation and deceptive trade practices claims. Doc. 17008. The 15 remaining claims for failure to warn, design defect, concealment, loss of consortium, and 16 punitive damages were scheduled for trial in May 2019, but the case settled. 17 H. Key Legal and Evidentiary Rulings. 18 The Court has made many rulings in this MDL that could affect the remanded and 19 transferred cases. The Court provides the following summary of key legal and 20 evidentiary rulings to assist the courts that receive these cases. 21 1. Medical Monitoring Class Action Ruling. 22 In May 2016, Plaintiffs’ counsel filed a medical monitoring class action that was 23 consolidated with the MDL. See Barraza v. C. R. Bard, Inc., No. CV-16-01374-PHX- 24 DCG (D. Ariz. May 5, 2015). The Barraza Plaintiffs moved for class certification for 25 medical monitoring relief on behalf of themselves and classes of individuals who have 26 been implanted with a Bard IVC filter, have not had that filter removed, and have not 27 filed a claim or lawsuit for personal injury related to the filter. Id., Doc. 54. The Court 28 declined to certify the class. Id., Doc. 95. 1 The class certification motion recognized that only 16 states permit claims for 2 medical monitoring. The Court concluded that the classes could not be certified under 3 Rule 23(b)(3) because individual issues would predominate. Id. at 20-21. The Court 4 further concluded that the class could not be certified under Rule 23(b)(2) because the 5 medical monitoring relief primarily constituted monetary rather than injunctive relief, and 6 the class claims were not sufficiently cohesive to permit binding class-wide relief. Id. 7 at 21-32. Finally, the Court concluded that typicality under Rule 23(a)(3) had not been 8 established. Id. at 32-34. The Barazza Plaintiffs dismissed their claims without 9 prejudice. Docs. 106, 107. No appeal has been filed. 10 2. Federal Preemption Ruling. 11 Defendants moved for summary judgment on the grounds that Plaintiffs’ state law 12 claims are expressly preempted by the Medical Device Amendments of 1976 (“MDA”), 13 21 U.S.C. § 360 et seq., and impliedly preempted by the MDA under the Supreme 14 Court’s conflict preemption principles. Doc. 5396. The Court denied the motion. 15 Doc. 8872; see In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-02641-PHX 16 DGC, 2017 WL 5625547 (D. Ariz. Nov. 22, 2017). 17 The MDA curtails state regulation of medical devices through a provision that 18 preempts state requirements that differ from or add to federal requirements. 21 U.S.C. 19 § 360k. The Bard IVC filters at issue in this litigation were cleared for market by the 20 FDA through section “510k” review, which focuses primarily on equivalence rather than 21 safety and effectiveness. See § 360c(f)(1)(A). 22 The Supreme Court in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), held that 23 § 360k does not preempt state law claims directed at medical devices cleared through 24 the 510(k) process because substantial equivalence review places no federal requirements 25 on a device. Id. at 492-94. Lohr also noted that the “510(k) process is focused on 26 equivalence, not safety.” Id. at 493 (emphasis in original). Although the Safe Medical 27 Devices Act of 1990 (“SMDA”), Pub. L. 101-629, injected safety and effectiveness 28 considerations into 510(k) review, it did so only comparatively. The Court found that 1 Lohr remains good law and that clearance of a product under 510(k) generally does not 2 preempt state common law claims. Doc. 8872 at 12-14. 3 The Court further found that Defendants failed to show that the 510(k) reviews for 4 Bard IVC filters imposed device-specific requirements as needed for preemption under 5 § 360k. Id. at 14-20. Even if device-specific federal requirements could be ascertained, 6 Defendants made no showing that any particular state law claim is expressly preempted 7 by federal requirements. Id. at 21-22. 8 The Court concluded that Plaintiffs’ state law claims are not impliedly preempted 9 because Defendants failed to show that it is impossible to do under federal law what the 10 state laws require. Id. at 22-24. Defendants pursued their preemption arguments in the 11 Booker appeal. Docs. 11934, 11953. As noted, the Ninth Circuit affirmed the Court’s 12 preemption ruling. See Docs. 21555, 21632; In re Bard, 969 F.3d at 1072-76. 13 3. The Lehmann Report Privilege and Work Product Rulings. 14 The Court granted Defendants’ motion for a protective order to prevent Plaintiffs 15 from using a December 15, 2004 report of Dr. John Lehmann. Doc. 699. Dr. Lehmann 16 provided various consulting services to Bard at different times. Following Bard’s receipt 17 of potential product liability claims involving the Recovery filter, Bard’s legal 18 department retained Dr. Lehmann in November 2004 to provide an assessment of the 19 risks associated with the Recovery filter and the extent of Bard’s legal exposure. 20 Dr. Lehmann prepared a written report of his findings at the request of the legal 21 department and in anticipation of litigation. The Court found the report to be protected 22 from disclosure by the work product doctrine. Id. at 4-12. The Court further found that 23 Plaintiffs had not shown a substantial need for the report or undue hardship if the report 24 was not disclosed. Id. at 13-15. The Court agreed with the parties that this ruling does 25 not alter any prior rulings by transferor judges in specific cases. Id. at 22. 26 4. Daubert Rulings. 27 The Court has ruled on Daubert motions directed at general experts, and refers the 28 remand and transfer courts to the following orders: 1 Daubert Order Doc. Nos. 2 3 Plaintiffs’ Expert Dr. Thomas Kinney 9428, 10323 4 Plaintiffs’ Experts Drs. Scott Resnick, Robert 9432 5 Vogelzang, Kush Desai, and Robert Lewandowski 6 7 Plaintiffs’ Experts Drs. David Kessler and Suzanne 9433 Parisian 8 9 Plaintiffs’ Experts Drs. Thomas Kinney, Anne Christine 9434 Roberts, and Sanjeeva Kalva 10 11 Plaintiffs’ Expert Dr. Mark Eisenberg 9770 12 Plaintiffs’ Expert Dr. Derek Muehrcke 9771 13 14 Plaintiffs’ Expert Dr. Darren Hurst 9772 15 16 Plaintiffs’ Expert Dr. Rebecca Betensky 9773 17 Defendants’ Expert Dr. Clement Grassi 9991, 10230 18 19 Plaintiffs’ Expert Dr. Robert McMeeking 10051, 16992 20 Plaintiffs’ Expert Dr. Robert Ritchie 10052 21 22 Plaintiffs’ Experts Drs. David Garcia and Michael Streiff 10072 23 Defendants’ Expert Dr. Christopher Morris 10230, 10231, 24 17285 25 26 27 28 1 5. Motion in Limine Rulings. 2 a. FDA Evidence (Cisson Motion). 3 In the Booker bellwether trial, Plaintiffs sought to exclude, under Federal Rules of 4 Evidence 402 and 403, evidence of the FDA’s 510(k) clearance of Bard IVC filters and 5 the lack of FDA enforcement action against Bard. Doc. 9529. The Court denied the 6 motion. Docs. 9881, 10323. 7 The Court found that under Georgia law, which applied in both the Booker and 8 Jones bellwether cases, compliance with federal regulations may not render a 9 manufacturer’s design choice immune from liability, but evidence of Bard’s compliance 10 with the 510(k) process was nonetheless relevant to the design defect and punitive 11 damages claims. Doc. 9881 at 3-4. The Court acknowledged concerns that FDA 12 evidence might mislead the jury or result in a mini-trial. Id. at 5-6 (citing In re C.R. 13 Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig. (Cisson), No. 2:10-CV-01224, 2013 WL 14 3282926, at *2 (S.D.W. Va. June 27, 2013)). But the Court concluded that such concerns 15 could adequately be addressed by efficient management of the evidence and adherence to 16 the Court’s time limits for trial, and, if necessary, by a limiting instruction regarding the 17 nature of the 510(k) process. Id. at 6-7.3 18 The Court noted that the absence of any evidence regarding the 510(k) process 19 would run the risk of confusing the jury, as many of the relevant events in this litigation 20 occurred in the context of the FDA’s 510(k) review of the Bard filters and are best 21 understood in that context. Doc. 9881 at 7. Nor was the Court convinced that all FDA 22 references could adequately be removed from the evidence. Id. 23 The Court further concluded that it would not exclude evidence and arguments by 24 Defendants that the FDA took no enforcement action against Bard with respect to the G2 25 or Eclipse filters, or evidence regarding information Bard provided to the FDA in 26

27 3 The Court did not find a limiting instruction necessary at the close of either the 28 Booker or Jones trials. See Doc. 10694 at 9. 1 connection with the 510(k) process. Docs. 10323 at 2-3 (Booker), 11011 at 4-5 (Jones). 2 The Court found that the evidence was relevant to the negligent design and punitive 3 damages claims under Georgia law. Id. The Court determined at trial that it had no basis 4 to conclude that the FDA’s lack of enforcement was intended by the FDA as an assertion, 5 and therefore declined to exclude the evidence as hearsay. Doc. 10568 at 87. 6 b. FDA Warning Letter. 7 Defendants moved to exclude evidence of the July 13, 2015 FDA warning letter 8 issued to Bard. Doc. 9864 at 2-3. The Court granted the motion in part, excluding as 9 irrelevant topics 1, 2, 4(a), 4(b), 5, 6, 7, and 8 of the warning letter. Docs. 10258 at 6-8 10 (Booker), 10805 at 1 (Jones), 12736 (Hyde), 17401 at 10 (Tinlin). Topics 1 and 2 11 concern the Recovery Cone retrieval system; Topic 4(a) concerns the filter cleaning 12 process; and Topics 4(b), 5, 6, 7, and 8 concern the Denali Filter. The Court concluded 13 that none of these topics was relevant to the issues in the bellwether cases involving a G2 14 filter (Booker), an Eclipse filter (Jones), either a G2X or Eclipse filter (Hyde), and a 15 Recovery filter (Tinlin). Id. 16 The Court deferred ruling on the relevance of topic 3 until trial in all bellwether 17 cases. The Court found that topic 3, concerning Bard’s complaint handling and reporting 18 of adverse events with respect to the G2 and Eclipse filters, as well as the adequacy of 19 Bard’s evaluation of the root cause of the violations, was relevant to rebut the implication 20 at trial that the FDA took no action with respect to Bard IVC filters. See Doc. 10693 21 at 13-15; Doc. 11256. The Court concluded that the warning letter was admissible under 22 Federal Rule of Evidence 803(8), and was not barred as hearsay. Doc. 10258 at 7. The 23 Court further concluded that the probative value of topic 3 was not substantially 24 outweighed by the danger of unfair prejudice to Bard under Rule 403. Id. The Court 25 admitted the warning letter in redacted form during the three bellwether trials. See 26 Docs. 10565, 11256, 12736. The Court noted that topic 3 included reference to the G2, 27 the filter at issue in Booker, and reached similar conclusions in Jones and Hyde. 28 Doc. 17401 at 11. The parties disputed the relevance of topic 3 in Tinlin because it did 1 not include reference to the Recovery, the filter at issue in Tinlin. Id. The Court did not 2 decide this issue because the Tinlin case settled. 3 c. Recovery Cephalad Migration Death Evidence. 4 Defendants moved to exclude evidence of cephalad migration (i.e., migration of 5 the filter toward the patient’s heart) by a Recovery filter resulting in patient death. The 6 Court denied the motion for the Booker bellwether trial, which involved a G2 filter. 7 Docs. 10258 at 4-5, 10323 at 4. 8 The Court granted the motion for the Jones bellwether trial, which involved an 9 Eclipse filter, and denied Plaintiff’s requests for reconsideration of the ruling before and 10 during the trial. See Docs. 10819, 10920, 11041, 11113, 11256, 11302; see also 11 Doc. 11409 at 94-96. The Ninth Circuit affirmed those rulings. Docs. 21554, 21610, 12 21656; see In re Bard, 816 F. App’x at 219. The Ninth Circuit denied Plaintiff’s petition 13 for rehearing en banc. See No. 18-16461, Doc. 54. 14 The Court granted the motion for the Hyde bellwether trial, which involved either 15 a G2X or Eclipse filter. Doc. 12533 at 6-7. The Court denied Defendants’ motion in the 16 Tinlin case, which involved a Recovery filter. Doc. 17401 at 7-10. 17 The Court concluded for purposes of the Booker bellwether trial that evidence of 18 cephalad migrations by a Recovery filter resulting in patient death was necessary for the 19 jury to understand the issues that prompted creation and design of the next-generation G2 20 filter, and thus was relevant to Plaintiff’s design defect claims. Doc. 10323 at 4. In 21 addition, because the Recovery filter was the predicate device for the G2 filter in 22 Defendants’ 510(k) submission to the FDA, and Defendants asserted to the FDA that the 23 G2 was as safe and effective as the Recovery, the Court concluded that the safety and 24 effectiveness of the Recovery filter was at issue. Id. The Court was concerned, however, 25 that too heavy an emphasis on deaths caused by cephalad migration of the Recovery 26 filter – a kind of migration which did not occur in the G2 filter generally or the Booker 27 case specifically – would result in unfair prejudice to Defendants that substantially 28 1 outweighed the probative value of the evidence. Id. Defendants did not object during 2 trial that Plaintiffs were over-emphasizing the death evidence. 3 The Court initially concluded for purposes of the Jones bellwether trial, which 4 involved an Eclipse filter, that evidence of cephalad migration deaths by the Recovery 5 filter was inadmissible because it was only marginally relevant to Plaintiff’s claims and 6 its marginal relevancy was substantially outweighed by the risk of unfair prejudice. See 7 Docs. 10819, 10920, 11041, 11113, 11256, 11302. This is because cephalad migration 8 did not continue in any significant degree beyond the Recovery filter; cephalad migration 9 deaths all occurred before the Recovery was taken off the market in late 2005; Ms. Jones 10 did not receive her Eclipse filter until 2010; the Recovery-related deaths said nothing 11 about three of Ms. Jones’ four claims (strict liability design defect and the failure to warn 12 claims); and instances of cephalad migration deaths were not substantially similar to 13 complications experienced by Ms. Jones and therefore did not meet the Georgia standard 14 for evidence on punitive damages. Docs. 10819, 11041. 15 The Court also found that deaths caused by a non-predicate device (the Recovery 16 was not the predicate device for the Eclipse in Defendants’ 510(k) submission), and by a 17 form of migration that was eliminated years earlier, were of sufficiently limited probative 18 value that their relevancy was substantially outweighed by the danger of unfair prejudice 19 because the death evidence may prompt a jury decision based on emotion. Id. The Court 20 further concluded that Plaintiff Jones would not be seriously hampered in her ability to 21 prove Recovery filter complications, testing, and design when references to cephalad 22 migration deaths are removed. Doc. 11041. As a result, the Court held that such 23 references should be redacted from evidence presented during the Jones trial. 24 The Court balanced this concern with the competing concern that it would be 25 unfair for Defendants to present statistics about the Recovery filter and not allow 26 Plaintiffs to present competing evidence that included Recovery deaths. See, e.g., 27 Doc. 11391 at 12. Based on this concern, Plaintiffs argued at various points during the 28 trial that Defendants had opened the door to presenting evidence about Recovery 1 cephalad migration deaths. The Court repeatedly made fact-specific determinations on 2 this point, holding that even though Defendants presented some evidence that made the 3 Recovery evidence more relevant, the danger of unfair prejudice continued to 4 substantially outweigh the probative value of the cephalad migration death evidence. See 5 Docs. 11113, 11302; see also Doc. 11409 at 94-96. 6 The Court concluded for purposes of the Hyde bellwether trial, which involved 7 either a G2X or Eclipse filter, that evidence of Recovery filter cephalad migration deaths 8 should be excluded under Rule 403 for the reasons identified in the Jones bellwether trial. 9 Doc. 12533 at 6-7. The Court concluded that this evidence had marginal relevance to 10 Plaintiff’s claims because Ms. Hyde received either a G2X or Eclipse filter, two or three 11 generations after the Recovery filter; Ms. Hyde did not receive her filter until 2011, more 12 than five years after cephalad migration deaths stopped when the Recovery was taken off 13 the market; the deaths did not show that G2X or Eclipse filters – which did not cause 14 cephalad migration deaths – had design defects when they left Defendants’ control; nor 15 did the cephalad migration deaths, which were eliminated by design changes in the G2, 16 shed light on Defendants’ state of mind when designing and marketing the G2X and 17 Eclipse filters. Id. at 7. 18 The Court concluded in the Tinlin case, which involved a Recovery filter, that 19 Recovery deaths and Defendants’ knowledge of those deaths were relevant to Plaintiffs’ 20 design defect claim under Wisconsin law because they went directly to the Recovery’s 21 foreseeable risks of harm and whether it was unreasonably dangerous. Doc. 17401 22 at 7-8. The Court also concluded that the Recovery death evidence was relevant to 23 Plaintiffs’ failure to warn and concealment claims because it was probative on the 24 causation issue – that is, whether her treating physician would have selected a different 25 filter for Ms. Tinlin had he been warned about the Recovery’s true risks, as Plaintiffs 26 describe them. Id. at 8. In addition, because this evidence would be used to impeach 27 expert testimony from Defendants that the Recovery filter was safe and effective, the 28 Court concluded that substantial similarity was not required. Id. at 8-9. The Court 1 further concluded that the death evidence was relevant to Bard’s state of mind and to 2 show the reprehensibility of its alleged conduct for purposes of punitive damages. Id. 3 at 9-10. The Court reached a different conclusion in the Jones and Hyde cases because 4 cephalad migration deaths stopped when the Recovery was taken off the market in 2005, 5 and the deaths shed little light on Defendants’ state of mind when marketing different, 6 improved filters years later. Id. at 9 n.4. As noted, the Tinlin case settled before trial. 7 d. SNF Evidence. 8 Plaintiffs sought to exclude evidence of complications associated with the SNF, 9 claiming that they were barred from conducting relevant discovery into the design and 10 testing of the SNF under CMO 10. Doc. 10487; see Doc. 1319. The Court denied 11 Plaintiffs’ request. Doc. 10489. The Court did not agree that Plaintiffs were foreclosed 12 from obtaining relevant evidence for rebuttal. The Court foreclosed this discovery 13 because Plaintiffs did not contend that the SNF was defective. Id. at 2. Plaintiffs also 14 had rebuttal evidence showing that reported failure rates for SNF were lower than 15 Recovery and G2 failure rates. Id. The Court ultimately concluded it would not preclude 16 Defendants from presenting its SNF evidence on the basis of a discovery ruling and 17 permitted Plaintiffs to make appropriate evidentiary objections at trial. Id. at 3. 18 e. Use of Testimony of Withdrawn Experts. 19 Defendants sought to preclude Plaintiffs’ use at trial of the depositions of three 20 defense experts – Drs. Moritz, Rogers, and Stein – who originally were retained by Bard 21 but were later withdrawn in some or all cases. Doc. 10255 at 2. The Court denied the 22 request in part. Doc. 10382. The Court found that Defendants failed to show that the 23 depositions of these experts were inadmissible on hearsay grounds, but agreed that it 24 would be unfairly prejudicial under Rule 403 to disclose to the jury that the experts 25 originally were retained by Bard. Id. at 2-3. The Court therefore concluded that 26 Plaintiffs could use portions of the experts’ depositions that support Plaintiffs’ claims, but 27 could not disclose to the jury that the experts originally were retained by Bard. Id. at 3. 28 The Court was concerned about the presentation of cumulative evidence, and therefore 1 required Plaintiffs to show that no other expert of similar qualifications was available or 2 that the unavailable expert had some unique testimony to contribute, before the 3 deposition of any withdrawn expert could be used at trial. Id. at 3-4. 4 f. Other Motion in Limine Rulings. 5 Other motion in limine (“MIL”) rulings may be useful to the receiving courts. See 6 Docs. 10075, 10235, 10258, 10947. The courts are referred to the following motions and 7 orders to assist in preparing for trial:4 8 • Parties’ Joint Stipulation on MILs in Booker: The Court, on stipulation of 9 the parties, excluded evidence concerning several case-specific issues in the Booker bellwether trial, as well as a few general issues, including: Bard’s 1994 10 criminal conviction; other lawsuits or claims against Bard; advertising by Plaintiff’s counsel; Plaintiff’s counsel specializing in personal injury or 11 products liability litigation; contingency fee agreements; and advertising by any counsel nationally for IVC filter cases. Doc. 10235. 12 13 • Defendants MIL 1 in Booker: The Court permitted evidence and testimony concerning Recovery complications. Doc. 10258 at 1-5; see Doc. 10819 14 (Jones). As noted above, the Court permitted evidence and testimony concerning Recovery filter cephalad migration deaths in the Booker bellwether 15 trial involving a G2 filter (Doc. 10323 at 4), but excluded such evidence in the trials involving a G2X or Eclipse filter (Docs. 10819, 10920, 11041). 16 • Defendants’ MIL 2 in Booker: The Court permitted evidence and testimony 17 relating to the development of the Recovery filter. Doc. 10258 at 5-6; see Doc. 10819 at 2-3 (Jones). 18 • Defendants’ MIL 4 in Booker: The Court excluded evidence and testimony 19 concerning a photograph of Bard employee Michael Randall making an offensive gesture. Doc. 10075 at 1-2. 20 • Defendants’ MIL 5 in Booker: The Court permitted Plaintiff’s expert 21 Dr. Thomas Kinney to be called as a fact witness, but prohibited him from testifying regarding his prior work for Bard as an expert witness in two prior 22 IVC filter cases or as a paid consultant to Bard. Docs. 10075 at 2-3, 10323 at 4. 23 24

25 26 4 The Court also ruled on the parties’ MILs concerning several case-specific issues. See Docs. 10075 (Plaintiff’s MIL 12 in Booker), 10258 (Plaintiff’s’ MILs 6 27 and 13 in Booker), 10947 (Defendants’ MIL 1 and Plaintiff’s MILs 1-4 and 7 in Jones), 12533 (Plaintiff’s MIL 3 in Hyde), 17285 (Plaintiff’s MIL 1 in Tinlin), 17401 (Plaintiff’s 28 MILs 2, 3, and 6 in Tinlin). 1 • Plaintiff’s MIL 2 in Booker: The Court reserved ruling until trial on evidence and testimony regarding the nature of Bard’s business, including the nature, 2 quality, and usefulness of its products, the conscientiousness of its employees, and references to its mission statement. Doc. 10075 at 3-4. 3 • Plaintiff’s MIL 3 in Booker: The Court permitted evidence and testimony 4 concerning the benefits of IVC filters, including testimony describing Bard filters as “lifesaving” devices. Doc. 10258 at 8. 5 • Plaintiff’s MIL 4 in Booker: The Court permitted evidence and testimony 6 that IVC filters, including Bard’s filters, are within the standard of care for the medical treatment of pulmonary embolism. Doc. 10258 at 8-9. Defendants 7 agreed to not characterize IVC filters as the “gold standard” for the treatment of pulmonary embolisms. Id. at 8. 8 9 • Plaintiff’s MIL 5 in Booker: The Court denied as moot the motion to exclude evidence and argument relating to failure rates, complication rates, 10 percentages, or comparative analysis of any injuries that were not produced to Plaintiffs during discovery, as all such information was produced. Doc. 10075 11 at 4. 12 • Plaintiff’s MIL 7 in Booker: The Court excluded evidence and argument relating to prior judicial opinions about Plaintiffs’ experts, including the 13 number of times their testimony has been precluded in other cases. Id. 14 • Plaintiff’s MIL 8 in Booker: The Court excluded evidence and argument that a verdict against Defendants will have an adverse impact on the medical 15 community, future medical device research or costs, and the availability of medical care. Id. at 4-5. 16 • Plaintiff’s MIL 9 in Booker: The Court deferred ruling on the relevance of 17 statements or lack of statements from medical societies, including the Society of Interventional Radiologists (“SIR”), until trial. Doc. 10258 at 14-18. The 18 Court ultimately admitted this evidence in both the Booker and Jones bellwether trials. 19 • Plaintiff’s MIL 10 in Booker: The Court excluded evidence and testimony 20 that Bard needed FDA consent to add warnings to its labels, send warning 21 letters to physicians and patients, or recall its filters. Id. at 18-19. The Court permitted evidence and argument explaining the reasons why Bard filters were 22 not recalled, FDA’s potential involvement in any recall effort, and the fact that warnings about failure rates and increased risks could not be based on MDR 23 and MAUDE data alone. Id. 24 • Plaintiff’s MIL 11 in Booker: The Court permitted evidence and argument relating to the informed consent form signed by Plaintiff prior to insertion of 25 the IVC filter, even though the form is not specific to IVC filters or Bard filters. Doc. 10075 at 5-6. 26 • Plaintiff’s MIL 14 in Booker: The Court reserved ruling until trial on 27 evidence and argument relating to background information and personal traits of Bard employees and witnesses. Id. at 7. 28 1 • Plaintiff’s MIL 6 in Jones: The Court permitted evidence and testimony concerning whether a party’s expert had been retained by the same attorneys in 2 other litigation. Doc. 10947 at 8-9. 3 • Plaintiff’s MIL 5 in Jones: The Court excluded evidence and testimony that Bard employees or their relatives have received Bard IVC filter implants. Id. 4 at 9-10. 5 • Defendants’ MIL 2 in Jones: The Court excluded evidence and testimony of other lawsuits against Bard. Id. at 11. 6 • Plaintiff’s MILs 4 and 5 in Hyde: The Court permitted evidence and 7 testimony concerning Bard’s Instructions for Use (“IFU”) and SIR Guidelines. Doc. 12507. 8 9 • Plaintiff’s MIL 2 in Hyde: The Court permitted evidence and testimony concerning “The Surgeon General’s Call to Action to Prevent Deep Vein 10 Thrombosis and Pulmonary Embolism.” Doc. 12533 at 4-6. 11 • Defendants’ MIL 3 in Hyde: The Court permitted evidence and testimony that Bard’s SNF is a reasonable alternative design. Id. at 7. 12 • Defendants’ MIL 4 in Hyde: The Court excluded testimony from Dr. 13 Muehrcke about his personal feelings of betrayal and his moral and ethical issues with Bard’s conduct. Id. at 7-8. 14 • Defendants’ MIL 6 in Hyde: The Court permitted evidence and testimony 15 regarding informed consent. Id. at 8-9. 16 • Plaintiff’s MIL 4 in Tinlin: The Court reserved ruling until trial on evidence and argument relating to a chart created by Defendants from their internal 17 TrackWise database regarding reporting rates of IVC filter complications. Doc. 17401 at 5. 18 • Plaintiff’s MIL 5 in Tinlin: The Court permitted evidence and testimony 19 concerning a chart comparing the sales of the permanent SNF with those of retrievable filters between 2002 and 2016. Id. at 5-6. 20 21 • Defendants’ MIL 3 in Tinlin: The Court permitted evidence and testimony concerning the Recovery Filter Crisis Communications Plan that Bard had 22 prepared in 2004 to help manage damaging media coverage about a Recovery migration death. Id. at 11-12. 23 • Defendants’ MIL 4 in Tinlin: The Court excluded evidence and testimony 24 concerning Dr. Muehrcke’s untimely disclosed opinion that one of his patients died from cardiac tamponade caused by a fractured strut that had embolized to 25 her heart. Id. at 12-13. 26 27 28 1 6. Deposition Designation Rulings. 2 The Court has ruled on numerous objections to deposition designations for trial 3 and refers the transferor courts to the following orders:5 4 5 Deponent Depo. Date Doc. No(s). 6 Bill Altonaga 10/22/2013 10497, 10922 7 Christine Brauer 05/23/2014 10922, 8 08/02/2017 10922 9 David Ciavarella 11/12/2013 10403 10 Gary Cohen 01/25/2017 10438 11 12 Robert Cortelezzi 11/11/2016 10438, 11064 13 Len DeCant 05/24/2016 10438, 11080 14 John DeFord 06/02/2016 10524, 11080 15 Mary Edwards 01/20/2014 10438 16 Robert Ferrara 04/17/2017 10438 17 18 Chris Ganser 10/11/2016 10438, 11073 19 Jason Greer 08/11/2014 10438, 10922 20 Janet Hudnall 11/01/2013 10403 21 Brian Hudson 01/17/2014 10403 22 John Lehmann 08/07/2014 10922 23 24 William Little 07/27/2016 10438, 11064 25 John McDermott 02/05/2014 10438 26

27 5 In addition to the depositions identified in the table above, the Court ruled on 28 numerous objections to case-specific deposition designations for trial. 1 Deponent Depo. Date Doc. No(s). 2 Patrick McDonald 07/29/2016 10486, 11064 3 4 Mark Moritz 07/18/2017 10922 5 Daniel Orms 08/16/2016 10403, 11073 6 Abithal Raji-Kubba 07/18/2016 11064 7 Gin Schulz 01/30/2014 10403 8 Christopher Smith 08/03/2017 11073 9 William Stavropoulos 02/01/2017 10524 10 11 Jack Sullivan 11/03/2016 10486, 12 09/16/2016 11080 13 Melanie Sussman 04/07/2017 11073 14 Mehdi Syed 03/02/2018 11313 15 Scott Trerotola 01/20/2017 10524 16 Douglas Uelmen 10/04/2013 10403, 11080 17 18 Carol Vierling 05/11/2016 10486, 11073 19 Mark Wilson 01/31/2017 10922 20 Natalie Wong 10/18/2016 10403 21 John Worland 03/16/2011 17582 22 23 7. Subject Matter Jurisdiction Rulings. 24 The parties identified cases in the MDL for which federal subject matter 25 jurisdiction does not exist. Docs. 20210, 21410, 21552, 21995. No federal question 26 jurisdiction exists under 28 U.S.C. § 1331 because the master complaint asserts no 27 federal claim and the state law claims alleged in the complaint do not depend on the 28 resolution of a federal law question. Doc. 364 ¶¶ 166-349. For purposes of diversity 1 jurisdiction under 28 U.S.C. § 1332, Defendant C. R. Bard, Inc. is a citizen of New Jersey 2 and Defendant Bard Peripheral Vascular, Inc. is a citizen of Arizona. See id. ¶¶ 11-12. 3 Thus, complete diversity between the parties does not exist in any case where each 4 Defendant is a named party and Plaintiff is a resident of either Arizona or New Jersey. 5 See Doc. 20210-1. 6 Plaintiffs in most of the cases without subject matter jurisdiction agreed to a 7 dismissal without prejudice. See id. Plaintiffs in other cases opposed dismissal, but 8 provided no reason why the cases should not be dismissed. See id. The Court dismissed 9 without prejudice multiple cases for lack of subject matter jurisdiction. Docs. 20667, 10 21461, 21579, 21741, 22014. Some of these cases may be refiled in state court. See 11 Doc. 20210-1. 12 8. Dismissal of Cases With Prejudice Under Rule 41(b). 13 In more than 100 cases in which no settlement decision has been made, the 14 Plaintiffs or their heirs either cannot be located or the Plaintiffs have been nonresponsive 15 to counsel’s repeated inquiries. See Doc. 22012. The Court has dismissed these cases 16 with prejudice for failure to prosecute. Doc. 22034 and amended at Doc. 22035 17 I. Further Proceedings in Remanded or Transferred Cases. 18 1. General Discovery. 19 Because all general fact and expert discovery has been completed in this MDL, the 20 courts receiving these cases need not be concerned with facilitating general expert, 21 corporate, and third-party discovery. This observation is not meant to restrict the power 22 of receiving courts for good cause or in the interest of justice to address issues that may 23 be unique and relevant in a remanded or transferred case. 24 2. Case-Specific Discovery and Trial Preparation. 25 According to the parties, the status of the remaining discovery and other pretrial 26 issues for the cases being remanded or transferred, and the estimated time needed to 27 resolve such issues and make the cases ready for trial, will be determined on remand or 28 transfer. Final trial preparation in the bellwether trials was governed by certain Court 1 orders. See Docs. 8871, 10323, 10587, 11011, 11320, 11321, 11659, 11871, 12061, 2 12853, 12971. 3 J. Documents to Be Sent to Receiving Courts. 4 If the Panel agrees with the Court’s suggestion of remand of the cases listed on 5 Schedule A and issues a final remand order (“FRO”), the Clerk of the Court for this 6 District will issue a letter to the transferor courts, via email, setting out the process for 7 transferring the case. The letter and certified copy of the FRO will be sent to the 8 transferor courts’ email addresses. 9 The parties have submitted a stipulated designation of record for remanded cases. 10 Doc. 21727-4; see J.P.M.L Rule 10.4(a). Upon receipt of the FRO, the Clerk of this 11 District shall transmit to the transferor court the following: (1) a copy of the individual 12 docket sheet for the remanded action, (2) a copy of the master docket sheet in this MDL, 13 (3) the entire file for the remanded action, as originally received from the transferor 14 district, and (4) the record on remand designated by the parties. See Doc. 21727-4; 15 J.P.M.L Rule 10.4(b). 16 The Court has concluded that the cases listed on Schedule B should be transferred 17 to appropriate districts pursuant to 28 U.S.C. § 1404(a). Upon receipt of this transfer 18 order, the Clerk for this District shall follow the same procedures prescribed above for 19 each of the individual cases listed on Schedule B. 20 If a party believes that the docket sheet for a particular case being remanded or 21 transferred is not correct, a party to that case may, with notice to all other parties in the 22 case, file with the receiving court a designation amending the record. Upon receiving 23 such designation, the receiving court may make any needed changes to the docket. If the 24 docket is revised to include additional documents, the parties should provide those 25 documents to the receiving court. 26 / / / 27 / / / 28 / / / TI. Conclusion. 2 Pursuant to 28 U.S.C. § 1404(a), the Clerk of this District is directed to transfer 3 || Alarcon vy. C. R. Bard, Inc., No. CV-17-00197, to the Central District of California, Los Angeles Division, for further proceedings. 5 IT IS SO ORDERED. 6 Dated this 22nd day of September, 2021. 7

° David G. Campbell 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28