Lampton v. C R Bard Incorporated

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

MELVIN LAMPTON, ) ) Plaintiff, ) ) v. ) ) No. 4:19-cv-00734-NKL C. R. Bard, INC. and BARD ) PERIPHERAL VASCULAR, INC., ) ) Defendants.

ORDER Before the Court is Defendants C. R. Bard, Inc., and Bard Peripheral Vascular, Inc.’s Notice of Adoption of Bard’s Motion to Exclude the Opinions of Rebecca Betensky, Ph.D. Doc. 88. Bard adopts and incorporates its Motion to Exclude the Opinions of Rebecca Betensky and Memorandum of Law in Support as filed in the multi-district litigation (“MDL”) proceeding before the Honorable David G. Campbell in the United States District Court for the District of Arizona, In Re: Bard IVC Filters Product Liability Litigation, No. 2:15-MD-02641-PHX-DGC (D. Ariz.), Doc. 88-1, MDL D.E. 7288. In his suggestions in opposition, Plaintiff Melvin Lampton incorporates the briefing in opposition to that motion in the MDL proceeding. Doc. 125-1, MDL D.E. 7809. In its reply suggestions, Bard incorporates its briefing in the MDL proceeding. Doc. 155-1, MDL D.E. 8221. The MDL Court denied Bard’s Motion. Doc. 125-2, MDL D.E. 9773. Because the MDL court’s order denying Bard’s Motion to Exclude was interlocutory, the law-of-the-case doctrine does not apply, and this Court is not bound by its ruling. Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827, 830 (8th Cir. 2008) (internal citations committed). However, considerations of comity and judicial economy generally weigh against disturbing the MDL court’s rulings. See Fenner v. Wyeth, 912 F.Supp.2d 795, 800 (E.D. Mo. 2012); see also Winter v. Novartis Pharmaceuticals Corp., 2011 WL 5008008, at *3 (W.D. Mo. Oct. 20, 2011) (“[P]rinciples of efficiency and comity make the Court hesitant to disturb the MDL court’s ruling as doing so in the absence of a significant change of circumstances would frustrate the purposes of centralized pretrial proceedings.”) (internal citations and quotations omitted). After careful

review of the MDL court’s order and the parties’ briefing, this Court considers the order to be well-reasoned and supported by the law and evidence in the record. Furthermore, there has been no change in circumstances that would justify reexamination. Consequently, this Court will not disturb the MDL court’s decision. For the reasons stated in the MDL court’s order, Doc. 125-2, MDL D.E. 9773, Bard’s Motion to Exclude the Opinions of Rebecca Betensky, Ph.D., is denied.

/s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

Dated: November 23, 2020 Jefferson City, Missouri