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The U.S. District Judge presiding over all federal IVC filter lawsuits involving Bard products has rejected a last ditch effort by the manufacturer to have the first bellwether case dismissed before trial, allowing failure to warn claims to go before a jury in May 2018, at which time Plaintiffs will also be permitted to seek punitive damages.
There are currently more than 3,500 cases pending in a federal multidistrict litigation (MDL) established for product liability claims involving 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. However, each of the lawsuits raise similar allegations that design defects make the devices prone to move out of position, puncture internal organs or fracture, causing small pieces to travel throughout the body.
Since August 2015, the Bard IVC filter litigation has been centralized before U.S. District Judge David G. Campbell in the District of Arizona for coordinated pretrial proceedings, to reduce duplicative discovery into common issues, avoid conflicting rulings from different Courts and serve the convenience of the parties, witnesses and the judicial system.
As part of the coordination before Judge Campbell, a small group of cases have been prepared for early “bellwether” trials, with a bard Eclipse IVC filter lawsuit brought by Doris and Alfred Jones scheduled to be the first to go before a jury starting in May 2018.
In an order (PDF) issued on March 12, Judge Campbell denied Bard’s motion for summary judgment in part. While the Court dismissed plaintiffs claims for consumer fraud, unfair trade practices, misrepresentation and negligence per se, the lawsuit will proceed to trial on claims for failure to warn and punitive damages.
While C.R. Bard claimed that its warnings of potential fracture were adequate, Judge Campbell determined that plaintiffs present sufficient evidence to argue at trial that the warnings were insufficient.
“Defendants contend that these warnings were adequate as a matter of law because they included a risk of fracture – the very complication experienced by Mrs. Jones,” he wrote. “Plaintiffs argue that the warnings were inadequate because they did not include risk rates or disclose that the risks associated with the Eclipse filter were higher than those for the SNF and other IVC filters.”
While the outcomes of the Jones bellwether trial will not be binding on other cases, it will be closely watched by those involved in the litigation, as it will help gauge how juries may respond to certain evidence and testimony that may be repeated throughout other cases. Also, the process may help facilitate the negotiation of IVC filter settlements, which may avoid the need for hundreds of individual trial dates in courts nationwide.