Johnston v. C R Bard Incorporated

Opinion

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 crockettm@gtlaw.com 1 12 3

C ounsel for Defendants IN THE UNITED STATES DISTRICT COURT 14 15 FOR THE DISTRI CT OF NEVADA 16 RUTHANN JOHNSTON, CASE NO. 3:20-cv-00069-MMD-BNW 17 Plaintiff, 18 v. STIPULATION AND ORDER TO 19 STAY DISCOVERY AND ALL C. R. BARD, INCORPORATED and BARD PRETRIAL DEADLINES 20 PERIPHERAL VASCULAR, (SECOND REQUEST) 21 INCORPORATED,

22 Defendants.

23 24 Plaintiff Ruth Ann Johnston (“Plaintiff”) and Defendants C. R. Bard, Inc. and Bard 25 Peripheral Vascular, Inc. (“Defendants” and collectively with Plaintiff, the “Parties”), 26 pursuant to Fed. R. Civ. P. 26(c) and (d) and LR IA 6-1, respectfully request that this Court 27 temporarily stay discovery and all pretrial deadlines, as set forth in the revised Discovery Plan 28 / / / 1 (Dkt. 54), until February 26, 2021 while the Parties finalize settlement documents. In 2 support thereof, the Parties state as follows: 3 This case was part of the Multi-District Litigation proceeding In re: Bard IVC Filters 4 Product Liability Litigation, pending before Senior Judge David Campbell of the District of 5 Arizona. 6 1. Plaintiff alleges experiencing complications following the implantation of a 7 Bard Inferior Vena Cava (“IVC”) filter, a prescription medical device. She has asserted three 8 strict products liability counts (manufacturing defect, information defect (failure to warn) and 9 design defect), six negligence counts (design, manufacture, failure to recall/retrofit, failure to 10 warn, negligent misrepresentation and negligence per se), two breach of warranty counts 11 (express and implied), two counts sounding in fraud (fraudulent misrepresentation and 12 fraudulent concealment), an unfair and deceptive trade practices count, and a claim for 13 punitive damages. 14 2. Defendants deny the allegations contained in the Complaint. 15 3. After four years, the completion of general issue discovery, and the conduct of 16 three bellwether trials, Judge Campbell ordered that cases, which were not settled or were not 17 close to settling, be transferred or remanded to the appropriate jurisdictions around the 18 country for case-specific discovery and trial. As a part of that process, he established a “track” 19 system, wherein certain cases were placed on tracks either to finalize settlement paperwork, 20 continue settlement negotiations, or be remanded or transferred. 21 4. This case was transferred to this Court on March 30, 2020 because at the time 22 it was not close to settling. But, since that date, the Parties have engaged in further 23 settlement discussions and have recently reached a settlement in principle. 24 5. Accordingly, the Parties request that this Court issue an order staying discovery 25 and pretrial deadlines until February 26, 2021 to allow the Parties time to finalize the 26 settlement. This will prevent unnecessary expenditures of the Parties and judicial resources as 27 well as place this case on a similar “track” as the MDL cases Judge Campbell determined 28 should continue settlement dialogue. 1 6. A district court has broad discretion over pretrial discovery rulings. Crawford- 2 El v. Britton, 523 U.S. 574, 598 (1998); accord Republic of Ecuador v. Hinchee, 741 F.3d 3 1185, 1188-89 (11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating 4 & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also Cook v. Kartridg 5 Pak Co., 840 F.2d 602, 604 (8th Cir. 1988) (“A district court must be free to use and control 6 pretrial procedure in furtherance of the orderly administration of justice.”). 7 7. Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the 8 scope of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement 9 negotiations do not automatically excuse a party from its discovery obligations, the parties 10 can seek a stay prior to the cutoff date. Sofo v. Pan-Am. Life Ins. Co., 13 F.3d 239, 242 11 (7th Cir. 1994); see also, Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 12 (5th Cir. 1993) (finding that a “trial judge’s decision to curtail discovery is granted great 13 deference,” and noting that the discovery had been pushed back a number of times because of 14 pending settlement negotiations). 15 8. Facilitating the efforts of parties to resolve their disputes weighs in favor of 16 granting a stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, 17 at *2-3 (D. Nev. July 8, 2013), the parties requested a 60-day stay to facilitate ongoing 18 settlement negotiations and permit them to mediate global settlement. The Court granted the 19 stay, finding the parties would be prejudiced if required to move forward with discovery at 20 that time and a stay would potentially prevent an unnecessary complication in the case. Id. at 21 *3. Here, the Parties have reached a settlement in principle. 22 9. The Parties agree that the relief sought herein is necessary to handle the case in 23 the most economical fashion yet allow sufficient time to schedule and complete discovery if 24 necessary, consistent with the scheduling obligations of counsel. The relief sought in this 25 Motion is not being requested for delay, but so that justice may be done. 26 / / / 27 / / / 28 / / / 1 WHEREFORE, Plaintiff and Defendants respectfully request the Court’s approval ¢ 2 || this stipulation to stay discovery and all pretrial deadlines until February 26, 2021 to allo 3 || the Parties to conduct ongoing settlement negotiations. 4 IT IS SO STIPULATED. 5 Respectfully submitted on November 20, 2020. 6 |} DALIMONTE RUEB STOLLER, LLP GREENBERG TRAURIG, LLP 7 g || By: (s/f Gregory D. Ruel By: (sf Ericow. Swaniy GREGORY D. RUEB, ESQ. ERIC W. SWANIS, ESQ. ? Admitted Pro Hac Vice Nevada Bar No. 6840 10 515 S. Figueroa Street, Suite 1550 10845 Griffith Peak Drive Los Angeles, California 90071 Suite 600 11 greg@drlawllp.com Las Vegas, Nevada 89135 12 BRIAN D. NETTLES, ESQ. CHRISTOPHER NEUMANN, ESQ.* 13 NETTLES MORRIS *Admitted Pro Hac Vice 1389 Galleria Drive, Suite 200 1144 15th Street, Suite 3300 14 Henderson, Nevada 89014 Denver, Colorado 80202 15 brian@nettlesmorris.com neumannc@gtlaw.com 16]! The parties’ stipulation is GRANTED. However, given the length of the discovery stay IT 7 IS ORDERED that on January 11, 2021, defendants must file a status report informing the Court whether negotiations are still ongoing and whether the discovery stay 18 || continues to facilitate settlement. The discovery stay will continue unabated until further court action. 19 IT ISSO ORDERED 20 DATED: 12:46 pm, November 24, 2020 21 22 Gra Lea wre Eee, 23 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDG 24 25 26 27 28