Bard Opposes Remanding Hernia Mesh Lawsuits, Indicating Fourth Bellwether Trial Should Move Forward in MDL

C.R. Bard is asking the U.S. District Judge presiding over all federal Bard hernia mesh lawsuits to delay sending cases back to their originating courts for trial, indicating that it remains premature, even though the parties have failed to negotiate global settlements more than five years after all claims were consolidated as part of a multidistrict litigation (MDL).

Nearly 21,000 product liability lawsuits have been filed against C.R. Bard throughout the federal court system, each involving similar allegations that users suffered painful and debilitating injuries caused by design defects associated with various polypropylene products sold in recent years, including the Bard Ventralight, Bard Ventralex, Bard Perfix Plug, Bard 3DMax, and other similar systems.

Since each of the claims raise similar questions of fact and law, the hernia mesh lawsuits have been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio since August 2018, as part of a federal Bard hernia mesh MDL, where the parties have already held three test trials to help determine how juries may respond to certain evidence and testimony that may be repeated throughout the claims.

Although the bellwether trials were designed to promote resolution of the litigation, large numbers of Bard hernia mesh settlements have not materialized, and thousands of individuals are still awaiting their day in court.

Judge Sargus presided over the first Bard hernia mesh trial in August 2021, which resulted in a  defense verdict for Bard, following lengthy delays due to the COVID-19 pandemic. However, a second bellwether trial followed in April 2022, resulting in a $255,000 verdict, and the third resulted in a $500,000 verdict in November 2023.

In August 2022, a state court lawsuit in Rhode Island ended with a $4.8 million verdict over Bard Ventralex mesh problems, which sent a strong signal to the manufacturer about the extent of liability it may face if each of the remaining cases goes before a jury.

With a fourth and final Bard hernia mesh bellwether trial scheduled to go before a jury in April 2024, involving complications with Bard 3DMax, the Plaintiffs Steering Committee (PSC) filed a motion last month calling for the court to start planning for the remand of Bard hernia mesh lawsuits back to the U.S. District Courts where they originated.

Bard Opposes Remand of Hernia Mesh Lawsuits

Plaintiffs maintain that the pretrial proceedings in the MDL have essentially been completed, with the Court making it clear the fourth bellwether trial in April would be the last.

To help move cases forward, the PSC asked Judge Sargus to identify a group of 1,500 cases, representing approximately 7.5% of all cases filed in the MDL, and return those cases to U.S. District Courts nationwide so that lawyers could begin preparing for large numbers of trials to determine the amount of damages they are entitled to receive.

Earlier this week, Bard filed a response (PDF) opposing any remand process at this point, calling it “premature, unreasonable, and counter-productive”.

The defendants argue that remand should not be considered until after the fourth bellwether trial, which it says will be important in evaluating the entire litigation and determining the next steps.

Bard notes that the litigation is unusual in that it involves more than 20 different medical devices, some dating back to the early 1960s, and almost all of which are currently still on the market. The manufacture indicates that this made it impossible to reach a resolution based on the merits of each individual device. The defendants’ response indicates it is important to hold the fourth bellwether trial before remand talks begin so that the parties can look at the results from as broad a range of devices as possible.

The response indicates that the four devices represented in the bellwether trials, the Ventralight ST, Ventralex, PerFix Plug and 3DMax, represent more than half the devices used in the pending cases.

“While Bard agrees that core discovery is substantially complete and that the bellwether process and trials have provided useful information for both possible resolution of cases and the eventual trials of cases in transferee courts, Bard disagrees that it is time to abandon the bellwether process and the fourth trial,” the response states. “Viewing the course of the litigation as a whole, including patterns of filings, the Court’s rulings, and the juries’ verdicts, it makes sense to stay the course and assess where things stand after the bellwether process is completed.”

The Plaintiffs’ Steering Committee has 10 days to respond to this opposition.

While the outcome of the early bellwether trials have no binding impact on other claims, facing the prospect of hundreds of individual claims going before juries in different U.S. District Courts nationwide will increase pressure on the manufacturer to negotiate hernia mesh settlements to resolve large groups of claims.

The next case management conference will be held on February 6.