Scope of Bard PowerPort Lawsuit MDL Expanded To Include Alternative Theories of Causation for Port Catheter Infections

A panel of federal judges has determined that a multidistrict litigation (MDL) established last year for all federal Bard PowerPort lawsuits will also include claims alleging that defects with the port reservoir caused infections, expanding the scope of proceedings that were previously limited to claims involving problems with the catheter itself.

In recent months, Becton, Dickinson & Co., and its Bard subsidiaries have faced a steadily growing number of product liability lawsuits involving problems with it’s PowerPort and other port catheter systems, which are placed below the skin to provide easy access for the delivery of medications, such as chemotherapy.

Most of the claims point to allegations involving a common defect with the Bard PowerPort, involving the use of barium sulfate in the design of the catheter material, which plaintiffs indicate degrades over time, leaving pits and fissures throughout the body and surface of the catheters, and potentially causing catastrophic port catheter fracture injuries. However, in recent weeks several complaints have been filed involving defects with the port reservoir, indicating that the use of polyoxymethylene in the plastic components caused the device to fail.

Last year, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided to centralize all Bard PowerPort lawsuits filed throughout the federal court system, transferring the claims to U.S. District Judge David G. Campbell, in the District of Arizona, for coordinated discovery and pretrial proceedings as part of a federal MDL, or multidistrict litigation.

The decision was based on common factual questions raised in the lawsuits filed at that time, each of which involved allegations that the Bard ports contained catheter components with a concentration of barium sulfate that is too high, which reduces the material integrity of the catheter, and can lead to port catheter infections, migrations, blood clots and fractures.

Bard PowerPort Lawsuits Over Reservoir Defects

After the MDL was formed, the manufacturers objected to the inclusion of three Bard PowerPort infection lawsuits folded into the MDL, indicating that the complaints raise “novel” theories regarding port reservoir defects, which should not be combined with claims involving defects with the catheter material. The defendants filed a motion to vacate those claims from the MDL in December.

The unique allegations raised in the lawsuits involve the decision to design the port reservoir with polyoxymethylene (“POM”), which is an acetal thermoplastic polymer material that is lower-cost than other titanium designs the manufacturer could have used.

The lawsuits claim the POM material is known to undergo oxidative degradation during processing, as well as when exposed to radiography, which can lead to the reduction of the mechanical properties of the polymer, causing it to become weak and prone to fracturing, or colonizing bacteria that causes severe infections.

As a result, the plaintiffs claim that they suffered injuries when the Bard port failed, which present alternative causation theories, but remain substantially the same as those related to the use of barium sulfate infused catheters.

JPML Keeps Bard PowerPort Reservoir Defect Claims in MDL

Earlier this month, the JPML filed a transfer order (PDF) that rejected the defendants’ motion to vacate Bard PowerPort lawsuit reservoir defect claims from the MDL, saying that inclusion of the cases would promote the “just and efficient conduct of the litigation.”

The decision came after the JPML heard oral arguments in late January, where plaintiffs opposed the exclusion of the cases.

“In our order centralizing this litigation, we held that centralization was warranted for actions sharing factual questions arising from allegations that defendants manufacture the catheter component of their port devices with a concentration of barium sulfate that is too high, which reduces the material integrity of the catheter, and can lead to injuries, including infection, fracture of the catheter, migration of the catheter, and thrombosis,” the judges wrote. “(P)laintiffs in these three actions allege they were implanted with a Bard implanted port catheter and subsequently suffered an infection. Thus, they allege claims against the same defendants, regarding the same products, and alleging similar injuries as the MDL plaintiffs.”

The JPML determined reservoir defect claims in those cases were consistent with the goals of centralization and will involve overlapping discovery and pretrial proceedings.

February 2024 Bard PowerPort Lawsuit Update

The decision comes as Judge Campbell has ordered the parties to take steps to prepare a small number of Bard PowerPort lawsuits for bellwether trials, which will be used to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

The parties have been directed to complete plaintiff fact sheets in 48 representative claims selected by July 31, 2024. That pool will then be whittled down to 15 cases selected by December 15, 2024, with each side choosing five cases for automatic inclusion into the discovery group pool, and the remaining cases being determined by the Court. Six cases from that pool will be selected by March 10, 2025 to form Bellwether Group 1, which will be the first cases prepared for early trial dates.

While the outcomes of these early bellwether trials will not have any impact on other claims pending in the MDL, they will be closely watched by lawyers and will likely have a substantial impact on the amount of Bard Port settlements the manufacturer may offer to avoid each claim being separately remanded for trial in U.S. District Courts nationwide.