New Trial Sought on Bard Hernia Mesh Damages Following $255k Verdict

Plaintiffs say the jury was wrongly instructed regarding the calculation of damages caused by Bard hernia mesh products

Following a $255,000 jury award returned last month in a Bard hernia mesh bellwether trial, plaintiffs have filed a motion for a new trial on damages only, arguing that the calculations made by jury were based on an erroneous instruction regarding the law and reductions that can be applied.

The verdict came in a lawsuit filed by Anthony Milanesi and his wife, Alicia Morz De Milanesi, which was selected as the second bellwether case to go before a jury in the federal court system, where nearly 17,000 similar hernia mesh lawsuits against Bard are currently awaiting trial.

Each of the lawsuits raise similar allegations that plaintiffs experienced complications and required additional surgery after receiving defective polypropylene hernia repair products sold in recent years, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems.

While the outcome was not binding on other plaintiffs, the trial was closely watched to signal how juries may respond to certain evidence and testimony that is likely to be repeated throughout thousands of other claims, and facilitate hernia mesh settlement negotiations between the parties.

Following several weeks of testimony, a jury in the U.S. District Court for the Southern District of Ohio ordered the manufacturers to pay $255,000 in Bard hernia mesh damages, including $250,000 for Anthony Milanesi on his negligent design defect claim, and an additional $5,000 in loss of consortium damages for his wife, due to the impact the injury had on their relationship and life.

On May 13, the Milanesis filed a motion for new trial on damages (PDF) or, in the alternative, a completely new trial.

“Defendants improperly convinced this Court that the doctrine of avoidable consequences is not an affirmative defense and thus the Court did not instruct the jury that the burden of proof was on Defendants as to the mitigation of damages,” the motion states. “The damages calculation of the jury was therefore based upon an erroneous instruction of law pertaining to damages and the reduction of damages, which prejudiced Plaintiffs, likely affecting the damages award to both Mr. Milanesi and Mrs. Milanesi.”

On the same day, the manufacturer filed a separate motion for judgment as a matter of law (PDF) in the case, calling for the Court to entirely overturn the verdict and rule in Bard’s favor on the plaintiffs’ charges of negligent design and loss of consortium claims. The manufacturer claims the plaintiffs failed to prove their hernia mesh was defective and did not establish causation, among other arguments.

At least two additional bellwether trials are expected to be held to help the parties gauge appropriate Bard hernia mesh damages, however, neither of the two remaining cases have yet been scheduled for trial. It is expected that the Court will first rule on these motions and whether a new trial is warranted in the Milanesi case.

In addition to the federal lawsuits, Bard also faces thousands of similar hernia mesh lawsuits in coordinated litigation in Rhode Island state court, and indicated in its most recent quarterly report that there are more than 26,000 product liability lawsuits pending nationwide.

If the company fails to negotiate settlements to resolve the litigation, it is expected that the court will schedule additional bellwether trials and order that waves of claims be worked up for remand back to U.S. District Courts nationwide for individual trial dates in the coming months.

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