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According to recent court filings, lawyers expect the number of hernia mesh lawsuits filed against C.R. Bard in the federal court system to hit 3,000 by the end of the year, as individuals who experienced complications following a hernia repair continue to investigate and file claims.
There are currently only a few hundred product liability lawsuits brought in U.S. District Courts nationwide, each involving similar allegations that plaintiffs suffered painful and debilitating complications that were caused by design defects with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene products sold by the same manufacturer in recent years.
Given similar questions of fact and law raised in the complaints, the federal litigation has been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation.
Following a status conference last week, Judge Sargus issued a pretrial order (PDF) on March 8, which indicates that lawyers representing plaintiffs in the litigation prodict that roughly 3,000 claims will be filed by the end of 2019.
To streamline the process for adding new claims to the Bard hernia mesh MDL, Judge Sargus has previously approved the direct filing of claims, where plaintiffs filed a “long-form” master complaint to standardize the allegations, and which allows each new case to be brought though a “short-form” complaint where the individual plaintiff adopts specific allegations in their claim.
To help the parties gauge the relative strengths and weaknesses of their claims, a bellwether process has also been established, where a small group of representative claims will be prepared for a series of early trial dates between May and September 2020.
In a separate case management order (PDF) issued on March 8, Judge Sargus outlined the form procedure and schedule for 12 plaintiffs selected for the bellwether pool to complete Plaintiff Fact Sheets (PFS), which will include case-specific information about their claims and injuries. The information must be submitted by March 25, 2019, and the parties are next scheduled to meet with the court for a conference on April 17, 2019.
Bellwether trials are currently expected to begin on May 8, 2020, July 13, 2020 and September 14, 2020, allowing the parties to gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.
Each of the cases raise similar allegations that polypropylene mesh used in Bard hernia repair products was unreasonably defective and dangerous, creating a risk of painful and debilitating complications where the mesh may fail and requires individuals to undergo additional surgery to remove the patch from their body.
While the outcomes of these “test” trials will not be binding on other claims, they may help the parties gauge the relative strengths and weaknesses of cases, and facilitate hernia mesh settlements with Bard and other manufacturers, which would avoid the need for hundreds of individual cases to be scheduled for trial over the coming years.
Similar consolidated pretrial proceedings have also been established for Atrium C-Qur lawsuits and Ethicon Physiomesh lawsuits, which involve competing hernia repair products that have also been linked to a high rate of failure and problems. The first bellwether trial dates in each of these other MDLs are expected to begin in early 2020.