Judge Denies Request for “Lone Pine” Order for Bard Hernia Mesh Lawsuits

Defendants sought to make plaintiffs present additional evidence and expert testimony in Bard hernia mesh lawsuits to prove they were injured and had been implanted with Bard mesh products before filing their claim.

The U.S. District Judge presiding over all hernia mesh lawsuits filed against C.R. Bard in the federal court system has rejected a request made by the manufacturer for a “Lone Pine” order, which would have required each plaintiff to provide advance expert opinions and support for their case prior to initiating a claim.

There are curently 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 held 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, and the size of the litigation is expected to continue to increase.

In May, C.R. Bard and Davol, Inc. filed a request for a so-called “Lone Pine” order, which would have required plaintiffs produce up-front documentation and evidence supporting their claim. The manufacturers asked that the court require that each plaintiff produce “evidence of a medical diagnosis of compensable injury, proof of implant with a covered device for this MDL, and certification that plaintiff’s counsel has conducted an assessment of basic issues that bear on whether a case should be pending in this proceeding.”

“Lone Pine” orders, which get their name from the 1986 New Jersey case of Lore v. Lone Pine Corp., are extremely rare, but they have been issued in some complex product liability or toxic tort lawsuits, where the defendant establishes that the extraordinary remedy is needed because existing procedural processes to weed out invalid claims has been exhausted, and there is a clear showing of evidence that calls into question the ability of many plaintiffs to produce evidence to establish critical elements of their claims.

In a case management order (PDF) issued on Tuesday, Judge Sargus denied the request for a Bard hernia mesh Lone Pine order, indicating there is no evidence such measures are needed, and pointing out he doubted there were sufficient questions about whether each individual plaintiff had been injured or implanted with a Bard mesh, to require such extreme measures in this litigation.

“Defendants only mention Plaintiffs ‘suing over a device not made by Bard or otherwise outside the scope of this MDL’ in passing, and their arguments are not similar to the proof of exposure issues present in a toxic tort case,” Judge Sargus wrote. “Defendants do not provide any evidence that a significant number of cases do not involve a device at issue in this MDL.”

Judge Sargus also noted that Bard cited a number of toxic tort cases in support of their motion, which present unique circumstances where plaintiffs need to establish exposure to certain chemicals, often through complicated environmental and epidemiological testing. However, the Bard hernia mesh lawsuits involve a specific medical product, which was surgically implanted into the bodies of individual plaintiffs.

The Court indicated that requiring a Lone Pine order in the Bard hernia mesh lawsuits would amount to “an unprecedented condition precedent to filing a claim and insertion of defense counsel screening of a plaintiff’s claim.”

Bard Hernia Mesh Settlements and Trials

While attempting to add barriers against the filing of new claims, Bard has failed to make substantial progress resolving or settling cases.

Some Bard hernia mesh settlements have been reached in certain claims filed in state courts, but the parties have failed to negotiate a global settlement that would provide a path for individual plaintiffs to establish that they qualify for compensation and resolve their claim without going to trial.

The first two bellwether trials held in the Bard hernia mesh MDL have resulted in mixed results, with the manufacturer receiving a defense verdict in the first claim, and being hit with a $255,000 jury award in the second claim.

It is expected that Judge Sargus will hold at least two additional bellwether trials to help the parties further evaluate the strengths and weaknesses of their positions. However, if the parties still fail to reach an agreement to settle Bard hernia mesh cases, then the Court will 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.