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Attorneys involved in the federal IVC blood clot filter lawsuits filed pending against C.R. Bard are set to meet this afternoon with the U.S. District Judge presiding over the litigation, to discuss the status of discovery and the preparation of bellwether cases for early trial dates.
There are currently about 1,700 product liability lawsuit pending in a federal multidistrict litigation (MDL) over the risk of problems with Bard IVC filters, which are small devices implanted in the vena cava to prevent blood clots from traveling to the lungs and causing a pulmonary embolism. Each of the claims involve similar allegations that the blood clot filters are prone to move out of position, puncture internal organs or fracture, causing small pieces to travel to the heart and lungs.
As the parties continue to prepare a small group of Bard blood clot filter lawsuits for bellwether trials later this year, all cases filed throughout the federal court system are centralized before U.S. District Judge David G. Campbell in the District of Arizona to reduce duplicative discovery into common issues, avoid conflicting rulings from different Courts and to serve the convenience of the parties, witnesses and the judicial system.
A status conference is scheduled for this afternoon at 4:00 p.m., at which time attorneys for Bard and plaintiffs involved in the litigation are expected to update the Court on the status of discovery, discuss protocols for the first batch of bellwether test cases, and to review a motion for summary judgment called for by Defendants in March.
Bard filed the motion to dismiss on March 24, claiming that the lawsuits should be pre-empted on the basis that the FDA imposed device-specific requirements affecting the safety and effectiveness of Bard IVC filters when they were approved through the agency’s 510(k) fast-track approval process. The manufacturer claims that meeting these obligations was a federal requirement, and that state law product liability claims should therefore fail, because they could not have built or labeled the filters any other way.
The plaintiffs dispute many of the facts laid out in Bard’s motion, but indicate that that even if all the defense’s stated facts are true, it still does not provide the manufacturer with preemption protection.
“Compounding the problem, many of the documents and statements on which Bard relies have evidentiary deficiencies. Most are hearsay and contain hearsay within hearsay,” the plaintiffs argue in a joint status report (PDF) filed on April 28. “Controverting many of Bard’s alleged ‘facts’ will involve evidentiary challenges. That laborious process that can be avoided if the Court resolves the issue as a matter of law.”
As part of coordinated MDL proceedings, Judge Campbell has previously established a bellwether trial plan, which calls for a small group of cases to be prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout many lawsuits. The status conference today is expected to include a discussion about case-specific discovery necessary to prepare individual cases for trial.
While the outcomes of these early bellwether trials will not be binding on other cases, they will be closely watched by those involved in the litigation, as they may influence eventual IVC filter settlements in hundreds of cases.
In addition to cases against Bard, hundreds of similar Cook IVC filter lawsuits and Cordis IVC filter lawsuits are also pending against the manufacturers of these similar medical devices. A separate group of Cook bellwether cases are also being prepared for a series of bellwether trials, which are scheduled to begin in October 2017.