Penkowicz v. C R Bard Incorporated

• Court: District Court, D. Nevada
• Decided: April 2, 2021
• Docket: 2:21-cv-00331
• Status: Unknown

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 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 C ounsel for Defendants 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRI CT OF NEVADA 9 DIETER PENKOWICZ, CASE NO. 2:21-cv-00331-JAD-BNW 10 Plaintiff, STIPULATION TO AND [PROPOSED] 11 ORDER TO STAY DISCOVERY AND 12 v. ALL PRETRIAL DEADLINES 13 C.R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC, 14 Defendants. 15 16 17 Pursuant to Federal Rule of Civil Procedure 26(c) and (d) and LR IA 6-2, Plaintiff Dieter 18 Penkowicz in the above-titled action and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, 19 Inc. (“Defendants” and collectively with Plaintiff, the “Parties”), respectfully request that this Court 20 temporarily stay discovery and all pretrial deadlines until June 28, 2021 while the Parties finalize 21 settlement documents. In support thereof, the Parties state as follows: 22 1. This case is related to the Multi-District Litigation proceeding In re Bard IVC Filters 23 Products Liability Litigation, MDL 2641 (D. Ariz.), pending before Senior Judge David Campbell 24 in the United States District Court for the District of Arizona. 25 2. Plaintiff alleges experiencing complications following the implantation of a Bard 26 Inferior Vena Cava (“IVC”) filter, a prescription medical device. He has asserted three strict products 27 liability counts (manufacturing defect, information defect (failure to warn) and design defect), six 28 negligence counts (design, manufacture, failure to recall/retrofit, failure to warn, negligent 1 misrepresentation and negligence per se), two breach of warranty counts (express and implied), two 2 counts sounding in fraud (fraudulent misrepresentation and fraudulent concealment), an unfair and 3 deceptive trade practices count, and a claim for punitive damages. 4 3. Defendants deny the allegations contained in the Complaint. 5 4. After four years, the completion of general issue discovery, and the conduct of three 6 bellwether trials, Judge Campbell ordered that cases, which have not settled or are not close to settling, 7 be transferred or remanded to the appropriate jurisdictions around the country for case-specific 8 discovery and trial. As a part of that process, he established a “track” system, wherein certain cases 9 were placed on tracks either to finalize settlement paperwork, continue settlement negotiations, or be 10 remanded or transferred. 11 5. This case was transferred to this Court on February 26, 2021. However, the Parties 12 have engaged in further settlement discussions and have reached a settlement in principle. Therefore, 13 the Parties believe that a stay is necessary to conserve their resources and attention so that they may 14 finalize settlement documents in this case and those of the other plaintiffs represented by Plaintiff’s 15 counsel with cases pending before this Court and others across the country. 16 6. Accordingly, the Parties request that this Court issue an order staying discovery and 17 pretrial deadlines until June 28, 2021. 18 7. A district court has broad discretion over pretrial discovery rulings. Crawford-El v. 19 Britton, 523 U.S. 574, 598 (1998); accord Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188-89 20 (11th Cir. 2013); Thermal Design, Inc. v. Am. Soc’y of Heating, Refrigerating & Air-Conditioning 21 Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); see also Cook v. Kartridg Pak Co., 840 F.2d 602, 22 604 (8th Cir. 1988) (“A district court must be free to use and control pretrial procedure in furtherance 23 of the orderly administration of justice.”). 24 8. Under Federal Rules of Civil Procedure 26(c) and 26(d), a court may limit the scope 25 of discovery or control its sequence. Britton, 523 U.S. at 598. Although settlement negotiations do 26 not automatically excuse a party from its discovery obligations, the parties can seek a stay prior to the 27 cutoff date. Sofo v. Pan-Am. Life Ins. Co., 13 F.3d 239, 242 (7th Cir. 1994); see also Wichita Falls 28 Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1993) (finding that a “trial judge’s 1 decision to curtail discovery is granted great deference,” and noting that the discovery had been 2 pushed back a number of times because of pending settlement negotiations). 3 9. Facilitating the efforts of parties to resolve their disputes weighs in favor of granting 4 a stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. 5 July 8, 2013), the parties requested a 60-day stay to facilitate ongoing settlement negotiations and 6 permit them to mediate global settlement. The Court granted the stay, finding the parties would be 7 prejudiced if required to move forward with discovery at that time and a stay would potentially 8 prevent an unnecessary complication in the case. Id. at *3. Here, the Parties have reached a settlement 9 in principle. 10 10. The Parties agree that the relief sought herein is necessary to handle the case in the 11 most economical fashion yet allow sufficient time to schedule and complete discovery if necessary, 12 consistent with the scheduling obligations of counsel. The relief sought in this stipulation is not being 13 requested for delay, but so that justice may be done. 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] WHEREFORE, the Parties respectfully request that discovery and all pretrial deadlines b 2 || stayed until June 28, 2021 to allow the Parties to finalize settlement documents. 3 4 IT IS SO STIPULATED. 5 DATED this 29" day of March 2021. 6 4 FEARS NACHAWATI, PLLC GREENBERG TRAURIG, LLC

8 /s/ Mike H. T. Nguyen /s/ Eric W. Swanis Mike H. T. Nguyen Eric W. Swanis 9 Nevada Bar No. 12055 Nevada Bar No. 6840 Email: m_nguyen@thenguyenlaw.com Email: swanise@gtlaw.com 10 Nguyen & Associates, LLC 10845 Griffith Peak Drive, Suite 600 6831 Ponderosa Way Las Vegas, Nevada 89135 Las Vegas, NV 89118 Telephone: (702) 792-3773 2 Tel. 702-999-8888 Counsel for Defendants s&s 13 /s/ Kelly Chermack Kelly Chermack 14 Pro Hac Vice Forthcoming Texas Bar No. 24121361 IS Email: kchermack@fnlawfirm.com 6 5473 Blair Road Dallas, TX 75231 17 Telephone: (214) 890-0711 Facsimile: (214) 890-0712 18 19 Counsel for Plaintiffs 20 ORDER 1 IT IS SO ORDERED DATED: 3:54 pm, April 02, 2021 23 runs re □□□ 24 BRENDA WEKSLER 5 UNITED STATES MAGISTRATE JUDGE 26 27 28 ACTIVE 56009968v3