Bard Composix Hernia Mesh Lawsuit Filed In Timely Manner, Can Proceed, Judge Rules

A federal judge has rejected efforts by C.R. Bard to dismiss a lawsuit filed over complications with its Bard Composix hernia mesh, disagreeing with arguments by the manufacturer that the claims should be barred on statute of limitation grounds. 

The complaint (PDF) was filed by Kenneth E. Brugger, Jr. in the U.S. District Court for the District of South Carolina in January 2017, alleging that the Bard Composix L/P Mesh with Echo Positioning System is defective, dangerous to human health and unsuitable for use during hernia repair.

Brugger indicates that the Bard hernia mesh was implanted during a repair surgery in December 2011, and began to suffer from complications within a year. In about August 2013, Brugger developed a recurrent hernia and other problems due to the previous mesh implant, resulting in another surgical procedure later that same month. After experiencing additional symptoms, Brugger was hospitalized in November 2013 and again in January 2014, at which time additional surgery was necessary to have the abscess drained and his abdomen resected.

The lawsuit indicates that Brugger’s injuries were caused by problems with the design of the Bard Composix hernia mesh, indicating that the material harbors infections, can migrate from the implant location, cause adverse reactions and embed in human tissue over time, making removal due to the various defects complex.

In response to the lawsuit, Bard filed a motion to dismiss, arguing that Brugger knew that the mesh patch could have caused his injuries as early as August 2013, and waited too long to file based on South Carolina statute of limitation laws, which require that any claim be filed within a three years from when the cause of action arose, or plaintiff could have discovered that the product caused his injuries.

Since Brugger first began to notice hernia mesh complications in August 2013, and underwent a CT scan around that time, Bard argued that is when the statute of limitations clock started ticking. However, Brugger argued that the earliest the hernia mesh statute of limitations could have started running was January 2014, when doctors linked the recurring infections to his Composix mesh.

In an order and opinion (PDF) issued on July 20, U.S. District Judge Cameron McGowan Currie agreed that January 2014 was the point at which Brugger should have reasonably known the cause of his injuries was the Bard Composix mesh, and that his lawsuit filed in January 2017 was just within the three-year statute of limitations set by South Carolina.

In addition, the judge notes that a Bard Composix mesh recall issued in June 2014, and an FDA safety communication issued in October 2014, also fall well within the three year time limit.

“In sum, accepting the allegations of the Amended Complaint as true and drawing all inferences in Plaintiffs’ favor, the court holds a reasonable fact finder could conclude Plaintiffs’ claims arose, at the earliest, between January 24 and 27, 2014,” Judge Currie ruled. “These are the dates when the mass containing the mesh was removed and a pathology report confirmed the mass, in fact, included surgical mesh.”

The case comes as a number of product liability lawyers are pursuing hernia mesh lawsuits involving dangerous design defects associated with several commonly used hernia repair products. While most of the cases filed to date have involved Atrium C-Qur mesh lawsuits and Ethicon Physiomesh lawsuits, as cases continue to be reviewed involving other products, the size and scope of the hernia mesh litigation continues to widen.