In re Bard IVC Filters Prods. Liab. Litig.
| Decision Date | 20 May 2022 |
| Docket Number | MDL 15-02641-PHX-DGC |
| Citation | 603 F.Supp.3d 822 |
| Parties | IN RE: BARD IVC FILTERS PRODUCTS LIABILITY LITIGATION |
| Court | U.S. District Court — District of Arizona |
The Law Offices of Ben C. Martin and the law firm Martin|Baughman (collectively, "BCM") have filed a motion to reduce and exempt their clients’ recoveries from common benefit fee and expense assessments. Doc. 22144. The motion is fully briefed, and no party has requested oral argument. Docs. 22148, 22149, 22151, 22160. For reasons stated below, the Court will deny the motion.
This multidistrict litigation ("MDL") involves personal injury cases brought against Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, "Bard"). Bard manufactures and markets medical devices, including blood clot
filters. The MDL Plaintiffs each received implants of Bard filters and claim they were defective and caused serious injury or death.
The MDL was transferred to this Court in August 2015 when 22 cases had been filed. Doc. 1. More than 8,000 cases were filed before the MDL closed in May 2019. Docs. 18079, 18128. Thousands of the cases have settled. Many others have been remanded or transferred to appropriate districts because they no longer benefit from centralized pretrial proceedings. See , e.g. , Doc. 22042 ().
At the outset of the MDL, the Court entered Case Management Order ("CMO") 1, which directed counsel to select and appoint a Plaintiffs’ Steering Committee ("PSC") to coordinate pretrial activities and trial planning. Doc. 248.1 While the configuration of the PSC changed during the course of the litigation (see Docs. 248, 4016, 5285), Ben Martin has been a member since its inception (see Docs. 176 at 8, 248 at 2).2
CMO 6 was issued early in the MDL to provide for the fair and equitable sharing among plaintiffs and their counsel of the burden of litigating this complex case. Doc. 372 at 1. A common benefit fund was established to ensure that attorneys who performed work that benefited all plaintiffs and their counsel would be reasonably compensated. Id. at 1-2; see also Doc. 18038 at 4. Compensable common benefit work included meetings and conference calls, discovery, document review, expert retention and discovery, motion practice, court appearances, plaintiff-specific discovery and motion practice on bellwether cases, bellwether trials, and settlement efforts. Doc. 372 at 1-2, 7-8.
CMO 6 further provided for the establishment of two interest-bearing accounts to receive and disburse common benefit funds – the Bard IVC Filters Fee Fund and the Bard IVC Filters Expense Fund. Id. at 9. The Court granted the PSC's request to establish these accounts and appointed Citibank as escrow agent. See Docs. 16932, 17777. The accounts are funded through assessments on the gross monetary recoveries received by plaintiffs and their counsel. See Doc. 372 at 9-10.
CMO 6 established a total common benefit assessment amount of 8%, which included 6% for attorneys’ fees and 2% for expenses. Id. at 10. In May 2019, the Court found that significant unanticipated common benefit work justified an increase in the attorneys’ fees assessment percentage to 8%, but declined to increase the 2% assessment for expenses. Doc. 18038 at 3-5.3
As a member of the PSC, BCM was included as "Participating Counsel" under CMO 6. Doc. 372 at 2-3. As Participating Counsel, BCM agreed to the terms of the "Participation Agreement" which were incorporated into CMO 6. Id. at 14-27. The Participation Agreement is a voluntary agreement between plaintiffs’ attorneys to share common benefit work. Id. at 15-16. Under the agreement, an attorney is entitled to receive and use common benefit work "created by those attorneys who have also executed, or have been deemed to have executed, the Participation Agreement[,] ... regardless of the venue in which the attorney's cases are pending." Id. at 15. In return, Participating Counsel agreed to pay common benefit assessments from the gross recoveries obtained in all cases benefitting from common benefit work, including MDL cases and "all un-filed cases, tolled cases, and/or cases filed in state court in which [Participating Counsel] have a fee interest[.]" Id. at 17. This commitment was repeated several times in the Participation Agreement.4 The agreement further provided that "Non-Participating Counsel are not required to pay an assessment on state court cases or on un-filed cases[,]" but they are not entitled to receive common benefit work or common benefit payments for any work performed or expenses incurred. Id. at 17.
BCM moves to exempt and reduce client recoveries from common benefit assessments. Doc. 22144. BCM contends that no assessment should be paid by BCM clients whose cases were filed in federal court after the MDL closed, were filed in state court, or were never filed in any court. Id. at 11. BCM further contends that assessments for its cases that were at one time part of the MDL should "be capped at the average fee and costs amount paid on those cases that settled solely as the result of common fund work." Id. The Common Benefit Fee and Cost Committee opposes the motion. Doc. 22149.5 Bard has filed a brief urging BCM to be mindful of its confidentiality obligations under the various settlement agreements and asking the Court to deny BCM's request to conduct discovery regarding the value of other settlements. Doc. 22148.
BCM primarily relies on Judge Chhabria's decision In re Roundup Products Liability Litigation , 544 F. Supp. 3d 950 (N.D. Cal. 2021), in urging the Court to exempt BCM's unfiled cases, state court cases, and post-MDL federal court cases from common benefit assessments. Doc. 22144 at 1-2, 7-9. The Court will address the decision in Roundup , showing that it faced a very different set of facts than this case, and then will address the basis for the Court's authority to hold BCM and its clients to the terms of CMO 6 and the Participation Agreement.
Plaintiffs’ lead counsel in Roundup requested an order requiring that "whenever anyone in the country recovers money from Monsanto based on allegations that its Roundup product caused their cancer
, 8.25% of their recovery be held back and placed into a [common benefit] fund to compensate lawyers who took the lead in litigating against Monsanto." 544 F. Supp. 3d at 952. The proposed order would apply to any person who recovers money from Monsanto, "regardless of whether their lawyer was involved in the MDL or used MDL work product." Id. at 957.
Judge Chhabria understandably found this request "far-reaching" and "breathtaking [in] nature," and largely denied it. Id. at 952-53, 957 ; see also id. at 968 (). With respect to recoveries by people who were not plaintiffs in the MDL but who hired a lawyer with a client in the MDL, Judge Chhabria found that he could not "exert authority over the recovery of a person with so tenuous a connection to the MDL." Id. at 963. He concluded that "[n]either the common fund doctrine nor the district court's inherent power to control its docket justifies an order affecting the recovery of a nonparty merely because they happened to hire a lawyer with a client in the MDL." Id. And he found that the "same logic applies to disputes where the claimant has not filed a lawsuit in any court." Id. at 964.
Judge Chhabria did not address the question presented here. Although he found it "questionable whether a district court has authority ... over the recovery of someone whose lawyer signs a participation agreement," 544 F. Supp. 3d at 967, he ultimately took no position on this issue because he decided not to exercise any such authority he did have, id. at 968.6
Judge Chhabria's decision was influenced by several factors that are not present here.
First, in contrast to the very broad fee requests at issue in Roundup , the common benefit assessments in this case apply only to unfiled or state court cases whose attorneys elected to become Participating Counsel in this MDL. See Docs. 372 at 17, 22149 at 3, 6. BCM could have avoided paying assessments on recoveries from its unfiled and state court cases by declining to become Participating Counsel and forgoing the opportunity to receive and use common benefit work. See Doc. 22149 at 14. BCM instead joined the PSC, became Participating Counsel subject to the terms of the Participation Agreement, accessed common benefit work frequently while pursuing its unfiled and state court cases, and received common benefit payments for work it did in the MDL and in its state court cases. See Doc. 22149 at 2-8, 14. BCM expressly agreed in the Participation Agreement that common benefit assessments would "apply to all" of its "un-filed cases, tolled cases, and/or cases filed in state court[.]" Doc. 372 at 17; see also id. at 10, 15 (same).
Second, the Roundup court noted that much of the common benefit work in that case had been placed on the public docket and was available to any member of the public for free. The court found "[i]t would not be appropriate to take money from anyone's recovery based on access to that information." Id. at 972. This MDL is different. The common benefit work in this case includes millions of pages of reviewed documents, substantial ESI discovery, scores of depositions (including trial preservation depositions after the MDL closed), and numerous experts retained and developed by the MDL's lead counsel. See Docs. 18038 at 2-3, 22036 at 7-31. Although some of this work product can be found in the public docket (albeit with considerable difficulty as the docket itself now includes more than 22,000 separate entries), much of it is not public and would not be accessible to lawyers who are not Participating Couns...
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Martin v. Babbitt & Johnson PA (In re Bard IVC Filters Prod. Liab. Litig.)
...in nature and does not clearly confer on federal courts the power to create a common benefit fund or make assessments for that fund." Id. at 831. But, the court noted, "the is not entirely irrelevant" because it provides that the Judicial Panel on Multidistrict Litigation will transfer case......