United States District Court, D. Nevada
JOSEPH H. SCHOLER, Plaintiff,
C R BARD INCORPORATED, et al., Defendants.
RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP DON SPRINGMEYER,
ESQ. DUDLEY LAW FIRM LLC ELIZABETH DUDLEY (PRO HAC VICE TO BE
SUBMITTED) ATTORNEYS FOR PLAINTIFF
ORDER GRANTING MOTION TO EXTEND THE DEADLINE FOR PRO
HAC VICE APPLICATION FOR ELIZABETH DUDLEY (FIRST
Joseph H. Scholer respectfully requests that the Court extend
the deadline for the Pro Hac Vice [“PHV”]
application for his lead counsel Elizabeth Dudley due to
special circumstances. In support thereof, Plaintiff shows
of state Plaintiff's counsel, Elizabeth Dudley, has
represented Joseph H. Scholer in his products liability,
personal injury case involving his defective IVC filter since
February 2016. See attached Declaration of Elizabeth
case was directly filed as part of a Multi-District
Litigation proceeding designated In re: Bard IVC Filter
Litigation, pending before Senior Judge David Campbell
of the District of Arizona.
After four years, the completion of general issue discovery,
and the completion of three bellwether trials, Judge Campbell
has ordered that cases which have not settled or are not
close to settling, be transferred to the appropriate
jurisdictions around the country for case-specific discovery
and trial. As a part of that process, Judge Campbell
established a “track” system, whereby certain
groups of cases were placed on tracks either to finalize
settlement paperwork, continue settlement negotiations, or be
remanded or transferred.
Plaintiff's out of state counsel, Elizabeth Dudley has
been involved in settlement negotiations since June and which
are currently ongoing. The parties have agreed to a deadline
of November 30th for settlement negotiations in
this case to be concluded.
appears that Defendant Bard's national trial counsel, who
was in charge of the MDL discovery and trial process, then
involved a different law firm than their settlement counsel.
Apparently, due to a miscommunication, this Plaintiff's
case was put onto the “remand” list or track,
rather than the “Settlement Negotiations” list or
track, along with over 800 other cases, and was erroneously
remanded to this Court, even though intense settlement
negotiations are underway.
parties immediately and jointly moved this Court for an order
staying discovery and pretrial deadlines until November 30,
2019, to allow the parties to continue to engage in
settlement discussions. ECF Doc. 9, filed 9.23.2019.
parties agreed that this relief sought was and is necessary
to handle the case in the most economical fashion, yet allow
sufficient time to schedule and complete discovery if
necessary, consistent with the scheduling obligations of
counsel. The relief sought in that Motion was not at all for
delay, but so that justice may be done.
Court ordered a Stay of Discovery on September 23, 2019. ECF
Plaintiff's out of state counsel obtained local Nevada
counsel, Don Springmeyer, Esq., Wolf, Rifkin, Shapiro,
Schulman & Rabkin, LLP, who entered his appearance on
September 30, 2019 (ECF Doc. 12) and agreed to sponsor
Elizabeth Dudley's pro hac vice application.
Plaintiff's counsel then discovered that Mr. Scholer died
of a peripheral vascular obstruction, possibly due to his IVC
filter and therefore is not available to sign the PHV
application for his counsel, Elizabeth Dudley.
Counsel Dudley also represents the heirs of Mr. Scholer who
wish to substitute in as parties and also make a claim for
wrongful death if the case does not settle.
injured party's death raises procedural, pleading, and
estate/probate issues which will need to be resolved in order
for the litigation to proceed, e.g., setting up a
probate estate and appointing a personal representative which