Bard Avaulta Trial to Move Forward February 18 as Planned

The U.S. District Judge presiding over all federal vaginal mesh lawsuits has rejected a request by C.R. Bard to postpone all currently scheduled bellwether trials, meaning that a claim filed by an Ohio woman will go before a jury as planned on February 18.

A postponement for the Bard Avaulta trial was sought by the manufacturer after U.S. District Judge Joseph Goodwin made statements at a conference on December 9, indicating that the company may face “billions” in liability if they fail to settle claims.

Judge Goodwin suggested that if he were a stockholder, he would be materially interested in the fact that there have been multiple million dollar verdicts for individual plaintiffs in the litigation.

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Bard argued that media coverage of the comments may prejudice a jury and requested a delay for the start of a lawsuit filed by Debra Wise and her husband, Ronald, which is one of more than 10,000 cases pending in the federal court system involving women who suffered severe and debilitating complications from Bard vaginal mesh.

In a pretrial order (PDF) issued January 9, Judge Goodwin denied the manufacturers request to postpone and suspend all bellwether trials pending in the litigation, which have been scheduled to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation, potentially facilitating further vaginal mesh settlement negotiations between the parties.

Judge Goodwin indicated that Bard failed to good cause, as required by the Federal Rules, for the postponements and delays.

The complaint (PDF) filed by Debra and Ronald Wise raises claims that are similar to those brought in thousands of other lawsuits pending before Judge Goodwin. Wise indicates that she experienced problems after having a Bard Avaulta Plus Anterior and Posterior BioSynthetic Support System implanted at a West Virginia hospital on July 16, 2007.

All product liability lawsuits filed throughout the federal court system involving problems with transvaginal mesh or bladder slings used for repair of pelvic organ prolapse and female stress urinary incontinence are centralized before Judge Goodwin as part of seven different multidistrict litigations (MDLs) that have been established for cases filed against various manufacturers, including C.R. Bard, Ethicon, Boston Scientific, American Medical Systems (AMS), Coloplast, Neomedic, Cook Medical and others.

Bard Avaulta Bellwether Trials

Since all Bard Avaulta lawsuits were centralized before Judge Goodwin in October 2010, several small groups of cases have been prepared for early trial dates to help the parties gauge the relative strengths and weaknesses of their cases.

In July 2013, the first in a series of three bellwether trials began before Judge Goodwin, involving a lawsuit filed by Donna Cisson, who alleged that the design and polypropylene material used in the Bard Avaulta Plus led to various injuries, including inflammation, extrusion, erosion, and excessive scarring. That case ended in a jury award of $2 million, including punitive damages designed to punish Bard for their actions surrounding the design and sale of the product.

During the first day of trial in the second case, involving a complaint filed by Wanda Queen, the parties reached a confidential agreement to settle the Bard Avaulta mesh lawsuit. A third trial was cancelled after the complaint was voluntarily dismissed byt he plaintiff.

Given the lack of progress in reaching large numbers of settlements, Judge Goodwin previously ordered that two additional large waves of Bard cases be prepared to be “trial ready” by January 2015. With at least 185 cases soon to be ready for trial, plaintiffs have proposed that several consolidated Bard Avaulta trials be scheduled involving claims brought by women in the same U.S. District Courts that suffered injuries as a result of similar products.

In July, Judge Goodwin issued an order that pointed out that there are only about 5,000 civil trials conducted throughout the entire federal court system each year, with only about 2,000 of the cases involving jury trials nationwide. With more than 12 times that number of cases pending in seven different consolidated federal multidistrict litigations before in the Southern District of West Virginia, Judge Goodwin said that “extraordinary procedures” were necessary to move the cases forward and indicated that a continuing series of waves of cases would be prepared for trials.

In addition to the 185 cases included in the first two waves, a third wave of cases was identified earlier this year, including 298 cases stemming from problems with the Bard Avaulta Plus Anterior Support System, Avaulta Plus Posterior Support System, Avaulta Solo Anterior Synthetic Support System or Avaulta Solo Posterior Synthetic Support System

Judge Goodwin issued a further order (PDF) on December 10, outlining the schedule for pretrial proceedings in a “mini wave” of 60 cases from this third group, calling for the completion of all fact discovery by February 10, 2015 and expert discovery by May 5, 2015. Judge Goodwin will then hear any challenges to the admissibility of expert witness testimony, after which the cases will be deemed “trial ready” by late next year.

The remaining cases in this third wave will continue with case-specific discovery and expert discovery throughout 2015, with the first trials out of that group likely to be scheduled sometime in 2016.

In addition to Bard Avaulta lawsuits, there are more than 60,000 other similar claims pending before Judge Goodwin, including more than 14,000 Boston Scientific mesh lawsuits, 22,000 Ethicon mesh lawsuits, 1,750 Coloplast mesh lawsuits, 259 Cook Medical mesh lawsuits and about 71 Neomedic mesh lawsuits.

While the manufacturers have had some success in individual cases, many bellwether trials that have gone before juries involving different products have resulted in multi-million dollar verdicts.

Later this month, representatives for all of the manufacturers, as well as lawyers appointed to leadership roles on behalf of plaintiffs are scheduled to meet before Judge Goodwin for a joint vaginal mesh status conference on January 29.

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