Bard IVC Filter Bellwether Trial to be Split Into Two Phases

The U.S. District Judge presiding over more than 3,500 Bard IVC filter lawsuits indicates that the first bellwether trial, which is set to begin next month, will be bifurcated into two phases; one to address liability and compensatory damages, followed by a second phase to determine whether punitive damages should be awarded.

Since August 2015, all product liability lawsuits filed throughout the federal court system over problems with Bard IVC filters have been centralized before U.S. District Judge David G. Campbell in the District of Arizona as part of an MDL, or multidistrict litigation.

IVC filters are small, spider-like devices that are implanted into the inferior vena cava (IVC) to prevent blood clots from traveling to the lungs and causing a pulmonary embolism. However, design problems associated with several different retrievable Bard products have been linked to reports of severe injuries, after the IVC filters moved out of position, punctured internal organs or fractured, causing small pieces to travel throughout the body.

Judge Campbell has been coordinating pretrial proceedings to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and to serve the convenience of witnesses, parties and the judiciary. As part of the process, a small group of “bellwether” cases have been prepared for early trial dates, to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

The jury selection process is set to begin next week for the first bellwether case, involving claims filed by Sherr-Una Booker, who experienced problems after a Bard G2 Vena Cava Filter was implanted in June 2007.

According to an order (PDF) issued last month, 200 prospective jurors were directed to return a case-specific questionnaire this week, which will be made available to the parties on Tuesday. Following a final pretrial conference on March 2, a group of 60 prospective juries will be called to appear for follow up questions, and trial is expected to begin on March 14, 2018.

In a separate order (PDF) issued on February 12, Judge Campbell indicated that the trial of the Booker case will be conducted in two phases. The first will involving a determination of liability, compensatory damages and whether the plaintiff should be awarded punitive damages, which are designed to punish the manufacturer recklessly disregarding the health and safety of consumers. If necessary, the second phase will involve a determination of the amount of any punitive damages that should be added to the jury award in the first phase.

While the outcome of this trial and other bellwether cases will not be binding of remaining claims in the litigation, they will be closely watched by parties involved, and may influence eventual negotiations to reach IVC filter settlements, which would avoid the need for thousands of separate trials to be held nationwide.

In addition to cases against Bard, another 3,750 Cook IVC filter lawsuits are centralized as part of a separate MDL, involving similar allegations of design defects associated with that competing product.