Patchman 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 JERRY PATCHMAN, Case No. 2:20-cv-00599-KJD-BNW

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

18 Defendants.

19 20 Plaintiff Jerry Patchman (“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 6-2, respectfully request that this Court temporarily stay discovery and all 23 pretrial deadlines until April 19, 2021 while the Parties finalize settlement documents. In support 24 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 27 Arizona. 28 / / / 1 2. Plaintiff alleges experiencing complications following the implantation of a Bard 2 Inferior Vena Cava (“IVC”) filter, a prescription medical device. He has asserted three strict products 3 liability counts (manufacturing defect, information defect (failure to warn) and design defect), six 4 negligence counts (design, manufacture, failure to recall/retrofit, failure to warn, negligent 5 misrepresentation and negligence per se), two breach of warranty counts (express and implied), two 6 counts sounding in fraud (fraudulent misrepresentation and fraudulent concealment), an unfair and 7 deceptive trade practices count, and a claim for punitive damages. 8 3. Defendants deny the allegations contained in the Complaint. 9 4. After four years, the completion of general issue discovery, and the conduct of three 10 bellwether trials, Judge Campbell ordered that cases, which have not settled or are not close to settling, 11 be transferred or remanded to the appropriate jurisdictions around the country for case-specific 12 discovery and trial. As a part of that process, he established a “track” system, wherein certain cases 13 were placed on tracks either to finalize settlement paperwork, continue settlement negotiations, or be 14 remanded or transferred. 15 5. This case was transferred to this Court on March 30, 2020 because at the time it was 16 not close to settling. But, since that date, the Parties have engaged in further settlement discussions 17 and have reached a settlement in principle. The Parties believe that a stay is necessary to conserve 18 their resources and attention so that they may finalize settlement documents in this case and those of 19 two other plaintiffs represented by Plaintiff’s counsel with cases pending before this Court. 20 6. Accordingly, the Parties request that this Court issue an order staying discovery and 21 pretrial deadlines until April 19, 2021. 22 7. A district court has broad discretion over pretrial discovery rulings. Crawford-El v. 23 Britton, 523 U.S. 574, 598 (1998); accord Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188-89 24 (11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning 25 Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also Cook v. Kartridg Pak Co., 840 F.2d 602, 26 604 (8th Cir. 1988) (“A district court must be free to use and control pretrial procedure in furtherance 27 of the orderly administration of justice.”). 28 / / / 1 8. Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the scope 2 of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement negotiations do 3 not automatically excuse a party from its discovery obligations, the parties can seek a stay prior to the 4 cutoff date. Sofo v. Pan-Am. Life Ins. Co., 13 F.3d 239, 242 (7th Cir. 1994); see also Wichita Falls 5 Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1993) (finding that a “trial judge’s 6 decision to curtail discovery is granted great deference,” and noting that the discovery had been 7 pushed back a number of times because of pending settlement negotiations). 8 9. Facilitating the efforts of parties to resolve their disputes weighs in favor of granting 9 a stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. 10 July 8, 2013), the parties requested a 60-day stay to facilitate ongoing settlement negotiations and 11 permit them to mediate global settlement. The Court granted the stay, finding the parties would be 12 prejudiced if required to move forward with discovery at that time and a stay would potentially 13 prevent an unnecessary complication in the case. Id. at *3. Here, the Parties have reached a settlement 14 in principle. 15 10. The Parties agree that the relief sought herein is necessary to handle the case in the 16 most economical fashion yet allow sufficient time to schedule and complete discovery if necessary, 17 consistent with the scheduling obligations of counsel. The relief sought in this Motion is not being 18 requested for delay, but so that justice may be done. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 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 April 19, 2021 to allow the Parties 1 3 || finalize settlement documents. 4 IT IS SO STIPULATED. 5 Respectfully submitted on February 16, 2021. 6 7 || MCSWEENEY LANGEVIN, LLC GREENBERG TRAURIG, LLP 8 9 By: /s/ David M. Langevin By: /s/ Eric W. Swanis DAVID M. LANGEVIN, ESQ. ERIC W. SWANIS, ESQ. 10 Admitted Pro Hac Vice Nevada Bar No. 6840 dave@weststrikeback.com swanise@gtlaw.com 11 filing@westrikeback.com 10845 Griffith Peak Drive 2116 Second Ave. South Suite 600 12 Minneapolis, Minnesota 55404 Las Vegas, Nevada 89135 Bee 13 Telephone: (612)746-4646 B Facsimile: (612) 454-2678 CHRISTOPHER J. NEUMANN, ESQ. 14 Admitted Pro Hac Vice KRISTIE L. FISCHER 1144 15th Street, Suite 3300 15 Nevada Bar No. 11693 Denver, Colorado 80202 2565 Coral Sky Court 6 Las Vegas, Nevada 89142 Counsel for Defendants 17 fischer.kristie@gmail.com (702) 218-0253 18 Counsel for Plaintiffs 19 20 ORDER 71 IT IS ORDERED that the parties’ stipulation is GRANTED. 22 IT IS FURTHER ORDERED that by April 19, 2021, the parties must file either 23 || dismissal documents or a joint status report concerning the status of settlement 24 IT IS SO ORDERED 25 DATED: 2:29 pm, February 19, 2021 26 27 xu La EeON 28 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE