Court Outlines Process For Challenging Expert Witness Testimony on Problems with Bard Hernia Mesh In Advance of First Trial

The U.S. District Judge presiding over all hernia mesh lawsuits involving C.R. Bard products has laid out the process for parties to challenge the admissibility of expert witness testimony in advance of the first bellwether trials, which are set to begin over the next few months to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout thousands of other claims.

Bard currently faces more than 5,000 product liability lawsuits, each involving plaintiffs who suffered painful and debilitating complications following hernia repair procedures where Bard’s Ventralex, Ventralight, Perfix, 3DMax and other patch designs were used. However, as hernia mesh lawyers continue to review and file claims in the coming months and years, it is widely expected that the size of the litigation will continue to grow.

Given common questions of fact and law raised in complaints filed in U.S. District Courts nationwide, the federal court system has consolidated the Bard hernia mesh cases before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and a series of early trial dates set to begin in May 2020, July 2020 and September 2020.

In a case management order (PDF) issued on January 30, Judge Sargus laid out the schedule for dispositive motions and Daubert challenges for the first case set to go before a jury in May 2020.

For any expert witnesses deposed before January 24, the court indicates that challenges to the admissibility of that testimony under the federal Daubert standard must be filed this week, with oppositions due by February 21. Since certain depositions of Defendant expert witnesses are continuing through the first week of March, challenges for experts deposed after January 24 must be filed within 10 days after the deposition is completed.

Judge Sargus is expected to schedule hearings to consider the motions and whether the opinions offered by the experts about the hernia mesh design and risk of complications are sufficiently reliably to allow the testimony to be presented at trial.

While the outcomes of the early “bellwether” trials will not be binding on other Bard hernia patch lawsuits, they are expected to have a substantial impact on any hernia mesh settlements that Bard may offer to avoid thousands of individual trials being set for trial nationwide.

In addition to claims involving Bard mesh, similar allegations have also been presented in other lawsuits over hernia complications associated with polypropylene products sold by other manufacturers in recent years, including Atrium C-Qur, Ethicon Physiomesh and Ethicon Prolene hernia mesh.