Orgill v. C R Bard Incorporated

Opinion

1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 10845 Griffith Peak Drive, Suite 600 3 Las Vegas, Nevada 89135 Telephone: (702) 792-3773 4 Facsimile: (702) 792-9002 Email: swanise@gtlaw.com 5 CHRISTOPHER J. NEUMANN, ESQ. Admitted Pro Hac Vice 6 GREENBERG TRAURIG, LLP 1144 15th Street, Suite 3300 7 Denver, Colorado 80202 Telephone: (303) 572-6500 8 Email: neumannc@gtlaw.com 9 C ounsel for Defendants 10 11 IN THE UNITED STATES DISTRICT COURT 12

FOR THE DISTRI CT OF NEVADA 13 VIRGINIA M. ORGILL, Case No. 2:19-cv-01882-RFB-BNW

14 Plaintiff, STIPULATION AND ORDER TO EXTEND STAY OF DISCOVERY AND 15 v. ALL PRETRIAL DEADLINES 16 (THIRD REQUEST) C. R. BARD, INCORPORATED and BARD 17 PERIPHERAL VASCULAR, INCORPORATED,

18 Defendants.

19 20 Plaintiff Virginia M. Orgill (“Plaintiff”) and Defendants C. R. Bard, Inc. and Bard Peripheral 21 Vascular, Inc. (“Defendants” and collectively with Plaintiff, the “Parties”), pursuant to Fed. R. Civ. 22 P. 26(c) and (d) and LR IA 6-1, respectfully request that this Court temporarily stay discovery and all 23 pretrial deadlines, as set forth in the revised Discovery Plan (Dkt. 39), until May 27, 2021 while the 24 Parties finalize settlement. In support thereof, the Parties state as follows: 25 1. This case was part of the Multi-District Litigation proceeding In re: Bard IVC Filters 26 Product Liability Litigation, pending before Senior Judge David Campbell of the District of Arizona. 27 2. Plaintiff alleges experiencing complications following the implantation of a Bard 28 Inferior Vena Cava (“IVC”) filter, a prescription medical device. She has asserted three strict 1 products liability counts (manufacturing defect, information defect (failure to warn) and design 2 defect), six negligence counts (design, manufacture, failure to recall/retrofit, failure to warn, negligent 3 misrepresentation and negligence per se), two breach of warranty counts (express and implied), two 4 counts sounding in fraud (fraudulent misrepresentation and fraudulent concealment), an unfair and 5 deceptive trade practices count, and a claim for punitive damages. 6 3. Defendants deny Plaintiff’s allegations. 7 4. After four years, the completion of general issue discovery, and the conduct of three 8 bellwether trials, Judge Campbell ordered that cases, which were not settled or were not close to 9 settling, be transferred or remanded to the appropriate jurisdictions around the country for case- 10 specific discovery and trial. As a part of that process, he established a “track” system, wherein certain 11 cases were placed on tracks either to finalize settlement paperwork, continue settlement negotiations, 12 or be remanded or transferred. 13 5. This case was transferred to this Court on May 28, 2019 because at the time it was not 14 close to settling. But, since that date, the Parties have engaged in further settlement discussions and 15 have reached a global settlement in principle of this and other cases involving Bard Inferior Vena 16 Cava filters that have been filed across the nation, and a settlement agreement is in place. The Parties 17 have been working diligently and in good faith to finalize all terms and payments pursuant to that 18 settlement. 19 6. The Parties report that they continue to work diligently toward finalizing the settlement 20 by working to obtain releases and resolve liens, but due to complexity and volume, they anticipate 21 that completion of the settlement process will take approximately 90 days. Accordingly, the Parties 22 request a 90-day extension of the stay in this matter. 23 7. The Parties are waiting on final paperwork from this Plaintiff and many others, to 24 complete the settlement process. 25 8. Neither party will be prejudiced by this extension and this will prevent unnecessary 26 expenditures of the Parties and of judicial resources. 27 9. Accordingly, the Parties request that this Court issue an order staying discovery and 28 pretrial deadlines until May 27, 2021 to allow the Parties time to finalize settlement. This will 1 prevent unnecessary expenditures of the Parties and judicial resources as well as place this case on a 2 similar “track” as the MDL cases Judge Campbell determined should continue settlement dialogue. 3 10. A district court has broad discretion over pretrial discovery rulings. Crawford-El v. 4 Britton, 523 U.S. 574, 598 (1998); accord Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188-89 5 (11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning 6 Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also Cook v. Kartridg Pak Co., 840 F.2d 602, 7 604 (8th Cir. 1988) (“A district court must be free to use and control pretrial procedure in furtherance 8 of the orderly administration of justice.”). 9 11. Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the scope 10 of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement negotiations do 11 not automatically excuse a party from its discovery obligations, the parties can seek a stay prior to the 12 cutoff date. Sofo v. Pan-Am. Life Ins. Co., 13 F.3d 239, 242 (7th Cir. 1994); see also Wichita Falls 13 Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1993) (finding that a “trial judge’s 14 decision to curtail discovery is granted great deference,” and noting that the discovery had been 15 pushed back a number of times because of pending settlement negotiations). 16 12. Facilitating the efforts of parties to resolve their disputes weighs in favor of granting 17 a stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. 18 July 8, 2013), the parties requested a 60-day stay to facilitate ongoing settlement negotiations and 19 permit them to mediate global settlement. The Court granted the stay, finding the parties would be 20 prejudiced if required to move forward with discovery at that time and a stay would potentially 21 prevent an unnecessary complication in the case. Id. at *3. Here, the Parties have reached a settlement 22 in principle. 23 13. The Parties agree that the relief sought herein is necessary to handle the case in the 24 most economical fashion and to ensure that the Court’s time and resources are not expended on a 25 matter that may not remain on its docket, yet will allow sufficient time to finalize settlement in this 26 matter. 27 / / / 28 / / / 1 WHEREFORE, Plaintiff and Defendants respectfully request the Court’s approval of th 2 || stipulation to stay discovery and all pretrial deadlines until May 27, 2021 to allow the Parties 1 3 || finalize settlement. 4 IT IS SO STIPULATED. 5 Dated this 26" day of February 2021. 6 7 DALIMONTE RUEB STOLLER, LLP GREENBERG TRAURIG, LLP 8 By: _/s/ Gregory D. Rueb By: _/s/ Eric W. Swanis 9 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 1] greg @drlawllp.com Las Vegas, Nevada 89135 12 BRIAN D. NETTLES, ESQ. CHRISTOPHER NEUMANN, ESQ. 13 NETTLES MORRIS Admitted Pro Hac Vice B 1389 Galleria Drive, Suite 200 1144 15th Street, Suite 3300 14 Henderson, Nevada 89014 Denver, Colorado 80202 5 abe brian@nettlesmorris.com Email: neumannc@gtlaw.com 1s aes 16 Counsel for Plaintiff Counsel for Defendants 17 18 IT IS SO ORDERED. 19 KK gm Lea wre fat, 20 BRENDA WEKSLER □ United States Magistrate Judge 21 22 Dated March 3, 2021. 23 24 25 26 27 28