Jury Trial Underway for Bard Hernia Patch Lawsuit in Federal MDL

Case was selected as second in a series of early “bellwether” hernia mesh lawsuits to go before a jury against Bard, as thousands of plaintiffs await trial

With nearly 8,000 Bard hernia patch lawsuits pending throughout the federal court system, trial is now underway in Ohio for a “bellwether” claim designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

Each of the claims raise similar allegations that C.R. Bard has sold various different polypropylene hernia repair products in recent years that were defective and unreasonably dangerous, since they were prone to fail and result in the need for additional surgery.

Given similar questions of fact and law raised in the complaints, the federal litigation has been 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 will help parties evaluate the relative strengths and weaknesses of their cases, and potentially facilitate hernia mesh settlements that will avoid the need for thousands of individual cases to go before juries nationwide.

Following jury selections on Monday, opening statements began today in a lawsuit brought by Antonio Milanesi, who indicates that he experienced complications after a Bard Ventralex Hernia Patch was implanted during an umbilical hernia repair in July 2007. Nearly a decade later, he required additional surgery to have the hernia patch removed, after developing an infection and a small bowel fistula.

According to allegations raised in the case, which was initially filed in 2018, the defective Bard hernia patch adhered to a loop of Milanesi’s 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 him with permanent and severe injuries.

According to a case management order (PDF) issued by Judge Sargus last week, the bellwether trial is expected to last about 15 days, with each side limited to 37.5 hours for direct examination and cross examination. Together with his wife, Milanesi presents claims for negligence, negligent failure to warn, design defect, gross negligence, negligent misrepresentation, fraudulent misrepresentation, fraudulent concealment and loss of consortium.

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.

The first Bard hernia patch trial began in August 2021, involving a case selected by the manufacturer, which ended in a defense verdict. However, unless Bard is able to establish that it can consistently defend the safety of its products before juries or reaches an agreement to settle large numbers of cases following bellwether trials before Judge Sargus, the Court may begin remanding hundreds of individual cases to U.S. District Courts nationwide for individual trials in the coming years.