Bard Seeks Docket Control Order for Mounting Hernia Mesh Lawsuits Filed in MDL

As C.R. Bard and Davol continue to face a mounting number of hernia mesh lawsuits brought by individuals throughout the U.S. who suffered varying degrees of injuries after receiving one of their products, the manufacturers have asked the U.S. District Judge presiding over the federal litigation to put a “docket control” order in place, as part of an attempt to limit or eliminate claims that the companies deems to be low quality or lacking in merit.

There are already more than 16,800 product liability lawsuits pending in a federal multidistrict litigation (MDL), which was established in 2018, for all claims involving problems with Bard polypropylene hernia repair products, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems.

Following more than three and a half years of active litigation, including two early “bellwether” trials scheduled to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims, the parties have failed to resolve large numbers of claims, or negotiate a hernia mesh settlement program.

As Bard hernia mesh products continue to fail and result in the need for additional surgery or treatment, the number of new lawsuits brought throughout the federal court system has more than doubled over the past year, rising from just over 8,000 claims that were pending in June 2021.

In a motion (PDF) filed late last month, the Bard and Davol have U.S. District Judge Edmund A. Sargus, Jr. to establish docket control measures, which would limit new cases that could be added to the growing MDL.

The Defendants claim that in recent months there has been an influx of complaints filed that are “weaker than the body of cases that were pending in 2018 and early 2019.” The manufacturers indicate that many of the recent cases have been brought by individuals who still have the hernia mesh in place, are suing over incidental findings discovered during unrelated procedures, or have not suffered physical symptoms. In addition, the manufacturer claims that many of the claims appear to be barred by applicable statutes of limitations or repose, or involve claims that are outside the scope of the MDL.

“A personal injury lawsuit requires proof of a legally cognizable injury. Before filing a case in this MDL, the lawyer signing the complaint should have already identified medical records and/or generated expert proof that the subject Bard device caused physical injury symptoms and/or limitations, and/or that a complication with the device led to surgical intervention,” the motion states. “Providing fundamental proof of a legally cognizable injury should be a simple task at this stage, unless the case does not belong here because suit was filed without such an injury.”

The proposed docket control order would require that new hernia mesh lawsuits filed against Bard include confirmation of injuries that are relevant to the case, would require that plaintiffs’ attorneys have the necessary medical records, and provide confirmation that the case is not time-barred, among other requirements.

Bard claims the order would weed out unsupported cases, while not interfering with the progress of the coordinated pretrial proceedings. However, plaintiffs attorneys have not yet responded to the motion, and it is unclear whether the Court will take the unusual step of limiting new filings.

Under the current case management plan, at least two additional bellwether trials are expected to be held in the MDL. If the parties still fail to reach an agreement to settle Bard hernia mesh cases, then the Court is expected to begin ordering that large groups of cases go through case-specific discovery or remand back to U.S. District Courts nationwide for individual trial dates in the coming years.