Bard Faces Over 460 PowerPort Lawsuits Spread Between Federal MDL, New Jersey and Arizona State Courts

While lawyers continue efforts to prepare a group of Bard PowerPort lawsuits for early trial dates in the federal multidistrict litigation (MDL), a recent court filing highlights how the size and scope of the litigation continues to expand, with at least 416 product liability claims involving the port catheters now pending in the federal court system, and more than 50 others filed at the state court level.

The Bard PowerPort is a totally implantable vascular access device (TIVAD), which is used to deliver chemotherapy and other medications directly into a patient’s blood vessel. The device involves an injection port site, where a needle is inserted, as well as a polyurethane catheter tube that delivers the fluid to the body.

However, a growing number of lawsuits are now being pursued on behalf of individuals who experienced severe and life-threatening complications when the port catheters fractured, or small cracks developed in the material, allowing bacteria to form and cause devastating port catheter infections.

Each of the complaints raise similar allegations, indicating that the Bard PowerPort and other Bard port catheter devices were defectively designed, seeking financial compensation from the manufacturers.

Given common questions of fact and law raised in lawsuits filed throughout the federal court system, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to establish a Bard PowerPort lawsuit MDL in August 2023, centralizing the litigation before U.S. District Judge David G. Campbell in the District of Arizona for coordinated discovery and pretrial proceedings.

In a joint memorandum (PDF) submitted by the parties in advance of a case management conference last week, lawyers pointed out that there are 416 cases now pending in MDL, with 172 of the cases eligible for bellwether selection, since they were filed prior to April 1, 2024. Therefore, it appears the size of the litigation has more than doubled over the past few months, with lawyers previously indicating that several thousand cases remain under active investigation.

In addition to claims filed in the federal court system, there are currently 49 cases pending in the Superior Court of New Jersey and another two in Maricopa County, Arizona, each raising allegations that are substantially the same as those pending in the MDL.

Given the number of cases brought in New Jersey state court, an application was filed with the Supreme Court of New Jersey in May 2024, seeking to consolidate the Bard PowerPort lawsuits before one state-court judge for similar coordinated handling to what Judge Campbell is doing in the MDL. However, the manufacturers opposed the request in a filing on June 21, 2024, and the Administrative Office of the New Jersey Courts has not yet issued a decision.

September 2024 Bard PowerPort Lawsuit Update

Early in the MDL proceedings, Judge Campbell directed the parties to select a group of 24 initial Bard PowerPort bellwether lawsuits, which will go through case-specific discovery and be prepared for the first trial dates in the litigation.

Responsibilities for preparing those cases for trial, and representing the needs of plaintiffs throughout the litigation, were given to a group of attorneys appointed in September 2023 to fill leadership positions for one year. With the first bellwether trials not slated until late 2025 at the earliest, Judge Campbell issued a case management order (PDF) on August 20, reappointing those attorneys until September 2025. At that time, he will again consult with the attorneys about the continued need, and any changes to the composition, of the plaintiffs’ leadership that may be necessary.

Following the last case management conference on August 16, Judge Campbell issued an order (PDF) scheduling the next meeting between the Bard PowerPort lawyers and the Court for October 3, 2024 at 1:00pm. The parties have been directed to submit another joint memorandum before that meeting, providing a further update on progress of preparing bellwether cases for trial and ongoing discovery disputes.

After case-specific discovery is complete, it is expected that the parties will select a smaller group of six bellwether claims by March 10, 2025 that will be eligible for the first trial dates, which may begin by late 2025 or early 2026.

While the outcomes of these early bellwether trials will not have any binding impact on other claims pending in the MDL, they will likely have a major impact on Bard PowerPort settlement negotiations and any attempt to resolve large numbers of claims.