Bard Simon Nitinol Filter Lawsuits Already Included in Litigation Over IVC Filters, JPML Rules

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has determined that it is not necessary to formally expand the scope of pretrial proceedings previously established for all Bard IVC filter lawsuits, indicating that a number of Simon Nitinol filter (SNF) lawsuits have already been centralized as part of the same multidistrict litigation (MDL), without objection from any party.

Bard currently faces more than 5,400 product liability lawsuits filed over problems with inferior vena cava (IVC) filters sold by the company in recent years for prevention of pulmonary embolism among individuals at risk for blood clots, each raising similar allegations that the devices filters are prone to move out of position, fracture or fail, causing devastating injuries.

Given similar questions of fact and law presented in complaints filed throughout the federal court system, the claims were previously centralized as part of an MDL before U.S. District Judge David G. Campbell in the District of Arizona, where a small group of “bellwether” claims are being prepared for early trial dates to help the parties gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

With a number of similar Bard Simon Nitinol filter lawsuits being filed by individuals nationwide, Bard filed a motion (PDF) with the U.S. JPML in November, seeking to expand the scope of the MDL, or create a separate consolidated proceeding before a different judge, to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of the parties, witnesses and the courts.

The Simon Nitinol filters is a permanent IVC filter, which is similar to devices involved in the MDL proceedings, but those devices are designed to be retrieved and removed once the risk of a blood clot has passed.

The manufacturer indicated that there are currently at least 86 Bard SNF lawsuits filed nationwide, and that there will be common and overlapping factual and legal issues in the cases, regardless of whether the IVC filters are permanent or retrievable. In addition, Bard indicated in the filing that Judge Campbell informed the parties that he is willing to oversee that litigation as well.

In an order (PDF) issued on January 2, the U.S. JPML indicated that the motion was “moot”, since dozens of lawsuits over the Simon Nitinol filter have already been transferred to Judge Campbell from different U.S. District Courts, and no parties have raised any objections.

As part of the coordinated pretrial proceedings before Judge Campbell, it is possible that a separate “bellwether” track will be established for Bard SNF lawsuits, while additional trials are going before juries involving the other Bard IVC filter products.

Last year, a jury awarded $3.6 million in a lawsuit over the Bard G2 filter, which fractured inside the body of the plaintiff. The jury found that Bard recklessly disregarded the safety of consumers who received their filters. A second bellwether trial last year ended in a defense verdict involving a Bard Eclipse IVC filter in June 2018, and a third bellwether trial is expected to begin in February 2019.

While the outcome of these bellwether trials are not be binding on other claims in the litigation, they are being 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. In July 2018, a Texas jury awarded $1.2 million in damages to a firefighter who suffered injuries from a Cook Celect filter.