Bard Hernia Patch Lawsuit Cleared To Go Before Jury, After Pretrial Motions for Summary Judgment Denied

Decision clears way for bellwether trial to be held in January 2022.

The U.S. District Judge presiding over all federal hernia patch lawsuits against C.R. Bard has denied a motion for summary judgment filed by the manufacturer, clearing the way for the second in a series of bellwether trials to go before a jury early next year.

C.R. Bard currently faces more than 8,000 product liability lawsuits brought throughout the federal court system, each involving similar allegations that the company sold dangerous and defective polypropylene hernia repair products in recent years, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems, which failed and caused plaintiffs to require additional surgery to remove the mesh from their body.

Given similar questions of fact and law raised in the complaints, the litigation is centralized before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, for coordinated discovery and a series of early bellwether trials, which are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the cases.

The first bellwether trial began in August 2021, involving a case selected by Bard, which ended in a defense verdict. However, a second case is being prepared to go before another jury on January 10, 2022.

The upcoming trial will involve claims brought by Antonio Milanesi and Alicia Morz De Milanesi, who brought their complaint in 2018, involving allegations that design defects caused complications with a Bard Ventralex Hernia Patch implanted in July 2007, during umbilical hernia surgery. In May 2017, Antonio Milanesi underwent additional surgery to have the mesh removed after developing an infection and a small bowel fistula. The lawsuit indicates the mesh adhered to a loop of the small bowel, leading to erosion and the need for a small bowel resection, anastomosis, removal of the mesh and repair of the ventral hernia, leaving Milanesi with permanent and severe injuries.

Defendants filed a motion for summary judgment in advance of the trial, claiming that the plaintiffs failed to demonstrate that the Ventralex caused Antonio Milanesi’s injuries, and objected to each of the plaintiffs’ claims. However, in a summary judgment (PDF) issued on October 14, Judge Sargus only agreed to dismiss one count of negligence per se, but allowed the rest of the lawsuit to proceed.

“Plaintiffs’ design defect, failure to warn, negligent misrepresentation, and fraudulent misrepresentation/concealment claims remain for jury adjudication, Judge Sargus ruled. “Accordingly, summary judgment on this basis is inappropriate.”

While the outcome of the Milanesi trial will not have any binding impact on thousands of other claims brought against C.R. Bard, it will be closely watched by lawyers and parties involved in the litigation.

Unless Bard is able to establish that it can consistently defend the safety of its products before juries or reaches agreements to settle hernia mesh cases following the bellwether trials, Judge Sargus may begin remanding hundreds of individual cases to U.S. District Courts nationwide for individual trial dates in the coming year.