1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 3 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 CHRISTOPHER J. NEUMANN, ESQ. 7 Admitted Pro Hac Vice 8 GREENBERG TRAURIG, LLP 1144 15th Street, Suite 3300 9 Denver, Colorado 80202 Telephone: (303) 572-6500 10 Email: neumannc@gtlaw.com 11 C ounsel for Defendants 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRI CT OF NEVADA 14 RUTH ANN JOHNSTON, CASE NO. 3:20-cv-00069-MMD-BNW 15 Plaintiff, 16 v. 17 C. R. BARD, INC.; BARD PERIPHERAL
18 VASCULAR, INCORPORATED,
19 Defendants. 20
21 STIPULATION AND [PROPOSED] ORDER TO STAY CASE 22 (FIRST REQUEST) 23 The Parties to the above-captioned matter hereby stipulate and jointly request this 24 Court to stay this case through August 17, 2020, and extend any existing deadlines impacted 25 by the stay for sixty (60) days to permit them to pursue negotiations of a global settlement of 26 this and all cases filed by Plaintiff’s counsel in similar matters. For the past two months, the 27 Parties have been working together cooperatively and diligently on settlement efforts. The 1 may attempt to resolve this case and the claims of other plaintiffs represented by Plaintiff’s 2 counsel. 3 Plaintiff’s counsel in this matter represents approximately 400 plaintiffs with cases 4 proceeding in this and other courts across the country asserting similar claims against 5 Defendants for injuries they contend arise out of their use of Defendants’ IVC filters. 6 Plaintiff’s counsel was actively involved in IVC filter litigation against Defendants both prior 7 to the formation of the MDL and in the MDL, including actively participating in the 8 bellwether trials. Defendants have retained Chip Gaudreau as settlement counsel for their 9 IVC filter cases; and Mr. Gaudreau has successfully resolved thousands of similar cases with 10 other counsel representing similar plaintiffs. Thus, Defendants and counsel for Plaintiff are 11 well experienced in the claims and issues in these cases in order to successfully negotiate the 12 resolution of such cases. 13 As a result, counsel for the Parties have had numerous discussions in an attempt to 14 achieve a global settlement of the cases and claims of the plaintiffs represented by Plaintiff’s 15 counsel. Counsel for the Parties have been actively negotiating a potential settlement during 16 the past two months, including the exchange of extensive information, medical records, and 17 medical imaging, to facilitate settlement discussions. Notwithstanding that fact and the 18 Parties’ diligence in working cooperatively toward settlement, the process of collecting and 19 reviewing medical records in hundreds of cases is taking longer than originally anticipated 20 because of hospital delays resulting from COVID-19. 21 The Parties have scheduled a mediation on August 15 and 16, 2020 with a mediator 22 who has successfully mediated the settlement of numerous individual Bard IVC filter cases 23 as well as several large “group” settlements of such cases. The Parties request a stay through 24 August 17, 2020 to allow them to complete that process. As part of that process, the Parties 25 and their counsel have agreed to “stand down” while they continue to pursue settlement 26 discussions. Thus, the Parties stipulate and jointly request this Court to enter a stay of all 27 discovery through and including August 17, 2020 and extend all pretrial deadlines in this 1 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent 2 authority and discretion to manage its own docket, this Court has the authority to grant the 3 requested stay. Fed. R. Civ. P. 6(b) (“When an act may or must be done within a specified 4 time the court may, for good cause, extend the time....”); Fed. R. Civ. P. 26(a) (“A party or 5 any person from whom discovery is sought may move for a protective order in the court 6 where the action is pending . . . The court may, for good cause, issue an order to protect a 7 party or person from annoyance, embarrassment, oppression, or undue burden or expense.”). 8 This Court therefore has broad discretion to stay proceedings as incidental to its power 9 to control its own docket – particularly where, as here, a stay would promote judicial 10 economy and efficiency. Bacon v. Reyes, 2013 U.S. Dist. LEXIS 143300, at *4 (D. Nev. 11 Oct. 3, 2013) (citing, Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th Cir. 1984)) 12 (“Whether to grant a stay is within the discretion of the court”); Lockyer v. Mirant Corp., 398 13 F.3d 1098, 1109 (9th Cir. 2005) (“A district court has discretionary power to stay proceedings 14 in its own court.”); Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay 15 proceedings is incidental to the power inherent in every court to control the disposition of the 16 causes on its docket with economy of time and effort for itself, for counsel, and for 17 litigants.”). 18 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) vest the Court with 19 authority to limit the scope of discovery or control its sequence. Crawford-El v. Britton, 523 20 U.S. 574, 598 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery 21 narrowly and to dictate the sequence of discovery.”) 22 In deciding whether to stay proceedings, courts weigh the competing interests of the 23 parties and the court. 24 Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a 25 party may suffer in being required to go forward, and the orderly 26 course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to 27 r esult from a stay. 1 Lockyer, 398 F.3d at 1110 (citing Landis, 299 U.S. at 255). Facilitating the efforts of parties 2 to resolve their disputes weighs in favor of granting a stay. In Coker v. Dowd, 2:13-cv-0994- 3 JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. July 8, 2013), the parties 4 requested a 60-day stay to facilitate ongoing settlement negotiations and permit them to 5 mediate global settlement. The Court granted the stay, finding the parties would be 6 prejudiced if required to move forward with discovery at that time and a stay would 7 potentially prevent an unnecessary complication in the case. Id. at *3. Similarly, the Parties 8 in the present case are engaged in ongoing global settlement negotiations with mediation 9 scheduled on August 15 and 16, 2020. 10 Thus, in order to facilitate settlement and conserve the resources of this Court and the 11 Parties, the Parties stipulate and jointly request this Court to enter a stay of this case through 12 August 17, 2020. The Parties further request that the Court extend the deadlines in this case 13 by sixty (60) days (or less to accommodate holidays) in light of the stay and the Parties’ 14 agreement to “stand-down” and focus on settlement, as follows: 15 PROPOSED EXISTING EXTENDED 16 EVENT DEADLINE DEADLINE 17 Fact discovery closes. September 28, 2020 November 20, 2020 18 The Plaintiff shall produce expert reports. October 12, 2020 December 11, 2020 19 The Defendants shall produce expert November 11, 2020 January 11. 2021 reports.
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1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 3 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 CHRISTOPHER J. NEUMANN, ESQ. 7 Admitted Pro Hac Vice 8 GREENBERG TRAURIG, LLP 1144 15th Street, Suite 3300 9 Denver, Colorado 80202 Telephone: (303) 572-6500 10 Email: neumannc@gtlaw.com 11 C ounsel for Defendants 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRI CT OF NEVADA 14 RUTH ANN JOHNSTON, CASE NO. 3:20-cv-00069-MMD-BNW 15 Plaintiff, 16 v. 17 C. R. BARD, INC.; BARD PERIPHERAL
18 VASCULAR, INCORPORATED,
19 Defendants. 20
21 STIPULATION AND [PROPOSED] ORDER TO STAY CASE 22 (FIRST REQUEST) 23 The Parties to the above-captioned matter hereby stipulate and jointly request this 24 Court to stay this case through August 17, 2020, and extend any existing deadlines impacted 25 by the stay for sixty (60) days to permit them to pursue negotiations of a global settlement of 26 this and all cases filed by Plaintiff’s counsel in similar matters. For the past two months, the 27 Parties have been working together cooperatively and diligently on settlement efforts. The 1 may attempt to resolve this case and the claims of other plaintiffs represented by Plaintiff’s 2 counsel. 3 Plaintiff’s counsel in this matter represents approximately 400 plaintiffs with cases 4 proceeding in this and other courts across the country asserting similar claims against 5 Defendants for injuries they contend arise out of their use of Defendants’ IVC filters. 6 Plaintiff’s counsel was actively involved in IVC filter litigation against Defendants both prior 7 to the formation of the MDL and in the MDL, including actively participating in the 8 bellwether trials. Defendants have retained Chip Gaudreau as settlement counsel for their 9 IVC filter cases; and Mr. Gaudreau has successfully resolved thousands of similar cases with 10 other counsel representing similar plaintiffs. Thus, Defendants and counsel for Plaintiff are 11 well experienced in the claims and issues in these cases in order to successfully negotiate the 12 resolution of such cases. 13 As a result, counsel for the Parties have had numerous discussions in an attempt to 14 achieve a global settlement of the cases and claims of the plaintiffs represented by Plaintiff’s 15 counsel. Counsel for the Parties have been actively negotiating a potential settlement during 16 the past two months, including the exchange of extensive information, medical records, and 17 medical imaging, to facilitate settlement discussions. Notwithstanding that fact and the 18 Parties’ diligence in working cooperatively toward settlement, the process of collecting and 19 reviewing medical records in hundreds of cases is taking longer than originally anticipated 20 because of hospital delays resulting from COVID-19. 21 The Parties have scheduled a mediation on August 15 and 16, 2020 with a mediator 22 who has successfully mediated the settlement of numerous individual Bard IVC filter cases 23 as well as several large “group” settlements of such cases. The Parties request a stay through 24 August 17, 2020 to allow them to complete that process. As part of that process, the Parties 25 and their counsel have agreed to “stand down” while they continue to pursue settlement 26 discussions. Thus, the Parties stipulate and jointly request this Court to enter a stay of all 27 discovery through and including August 17, 2020 and extend all pretrial deadlines in this 1 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent 2 authority and discretion to manage its own docket, this Court has the authority to grant the 3 requested stay. Fed. R. Civ. P. 6(b) (“When an act may or must be done within a specified 4 time the court may, for good cause, extend the time....”); Fed. R. Civ. P. 26(a) (“A party or 5 any person from whom discovery is sought may move for a protective order in the court 6 where the action is pending . . . The court may, for good cause, issue an order to protect a 7 party or person from annoyance, embarrassment, oppression, or undue burden or expense.”). 8 This Court therefore has broad discretion to stay proceedings as incidental to its power 9 to control its own docket – particularly where, as here, a stay would promote judicial 10 economy and efficiency. Bacon v. Reyes, 2013 U.S. Dist. LEXIS 143300, at *4 (D. Nev. 11 Oct. 3, 2013) (citing, Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th Cir. 1984)) 12 (“Whether to grant a stay is within the discretion of the court”); Lockyer v. Mirant Corp., 398 13 F.3d 1098, 1109 (9th Cir. 2005) (“A district court has discretionary power to stay proceedings 14 in its own court.”); Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay 15 proceedings is incidental to the power inherent in every court to control the disposition of the 16 causes on its docket with economy of time and effort for itself, for counsel, and for 17 litigants.”). 18 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) vest the Court with 19 authority to limit the scope of discovery or control its sequence. Crawford-El v. Britton, 523 20 U.S. 574, 598 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery 21 narrowly and to dictate the sequence of discovery.”) 22 In deciding whether to stay proceedings, courts weigh the competing interests of the 23 parties and the court. 24 Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a 25 party may suffer in being required to go forward, and the orderly 26 course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to 27 r esult from a stay. 1 Lockyer, 398 F.3d at 1110 (citing Landis, 299 U.S. at 255). Facilitating the efforts of parties 2 to resolve their disputes weighs in favor of granting a stay. In Coker v. Dowd, 2:13-cv-0994- 3 JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. July 8, 2013), the parties 4 requested a 60-day stay to facilitate ongoing settlement negotiations and permit them to 5 mediate global settlement. The Court granted the stay, finding the parties would be 6 prejudiced if required to move forward with discovery at that time and a stay would 7 potentially prevent an unnecessary complication in the case. Id. at *3. Similarly, the Parties 8 in the present case are engaged in ongoing global settlement negotiations with mediation 9 scheduled on August 15 and 16, 2020. 10 Thus, in order to facilitate settlement and conserve the resources of this Court and the 11 Parties, the Parties stipulate and jointly request this Court to enter a stay of this case through 12 August 17, 2020. The Parties further request that the Court extend the deadlines in this case 13 by sixty (60) days (or less to accommodate holidays) in light of the stay and the Parties’ 14 agreement to “stand-down” and focus on settlement, as follows: 15 PROPOSED EXISTING EXTENDED 16 EVENT DEADLINE DEADLINE 17 Fact discovery closes. September 28, 2020 November 20, 2020 18 The Plaintiff shall produce expert reports. October 12, 2020 December 11, 2020 19 The Defendants shall produce expert November 11, 2020 January 11. 2021 reports. 20 The Plaintiff shall produce any rebuttal December 9, 2020 February 8, 2021 21 expert reports. The Defendants shall produce any rebuttal January 6, 2021 March 8, 2021 22 expert reports. 23 Deadline to depose the Plaintiff’s experts. February 3, 2021 April 5, 2021 24 Deadline to depose the Defendants’ experts. March 5, 2021 May 4, 2021 The Plaintiff’s experts will be deposed 25 before the Defendants’ experts on the same 26 topic. Deadline to file Daubert motions and other April 23, 2021 June 22. 2021 27 dispositive motions. 1 Respectfully submitted this 8 day of July 2020. 2 DALIMONTE RUEB STOLLER, LLP GREENBERG TRAURIG, LLP 3 By: _/s/ Gregory D. Rueb By: /s/ Eric W. Swanis 4 GREGORY D. RUEB, ESQ. ERIC W. SWANIS, ESQ. 5 Admitted Pro Hac Vice Nevada Bar No. 6840 515 S. Figueroa Street, Suite 1550 10845 Griffith Peak Drive 6 Los Angeles, California 90071 Suite 600 7 gree@drlawllp.com Las Vegas, Nevada 89135 eswanis@gtlaw.com g BRIAN D. NETTLES, ESQ. NETTLES MORRIS CHRISTOPHER NEUMANN, ESQ 9 1389 Galleria Drive, Suite 200 Admitted Pro Hac Vice 10 Henderson, Nevada 89014 1144 15th Street, Suite 3300 brian@nettlesmorris.com Denver, Colorado 80202 1] Email: neumannc@gtlaw.com Counsel for Plaintiff Counsel for Defendants
14 ORDER 15 The Court, having reviewed the stipulation of the Parties, and good cause appearing 16 || therefore: 17 IT IS HEREBY ORDERED ADJUDGED AND DECREED that all activity in thi 18 || case shall be stayed through and including August 17, 2020. 19 IT IS FURTHER HEREBY ORDERED ADJUDGED AND DECREED that th 20 || discovery deadlines are extended as set forth above. 21 22 IT IS SO ORDERED 23 34 DATED: 5:48 pm, July 30, 2020
25 leas Are bat BRENDA WEKSLER 27 UNITED STATES MAGISTRATE JUDGE 28