Bard Objects to Hernia Mesh Case Selected For Third Bellwether Trial

While the first of two Bard hernia mesh lawsuits are set to go before a jury in April 2021, the manufacturer is challenging the plaintiffs’ third case selection for the “bellwether” process, arguing the injuries and claims are not representative of those presented by thousands of other plaintiffs in the litigation.

C.R. Bard currently faces more than 8,000 product liability claims brought throughout the federal court system, each involving similar claims that plaintiffs suffered painful and debilitating complications due to defective polypropylene mesh products sold in recent years, including Bard Ventralight, Bard Ventralex, Bard Perfix, Bard 3DMax and other similar mesh systems.

Plaintiffs allege design problems with polypropylene mesh caused them to experience severe abdominal pain, infections, adhesions, erosion and other complications which often result in the need for additional surgery to remove the failed hernia patch.

Given common 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 the past few years, where the parties have engaged in coordinated discovery in preparation for a series of early trial dates, which are intended to help gauge how juries are likely to respond to certain evidence and testimony which will be repeated throughout the claims.

While trials were originally expected to begin in May 2020, after the COVID-19 pandemic emerged in the United States, the start of that first bellwether case was postponed several times, and is tentatively set to begin in April 2021, with a second Bard mesh case expected to go before a jury in late Summer 2021.

Recently, the parties proposed specific cases for the third and fourth bellwether trials, which have yet to be scheduled for a start date, including one selected by each side.

This week, Bard filed an objection (PDF) to the plaintiffs’ selection of a Bard Perfix Plug case filed by Robert Stinson, Sr. as the third bellwether trial, indicating that it does not present facts and questions that will provide a meaningful example of how juries may respond to other claims in the litigation.

“[T]he claims and issues raised in Stinson are not representative of other cases in this MDL, a declared goal of the bellwether process,” according to the manufacturer. “Thus, a trial in Stinson would not provide an informative verdict that can be applied to the broader range of cases. As a result, Stinson is not an appropriate bellwether trial case, and should not proceed as the third case to be tried by this Court.”

Bard argues the claim should be replaced with a case it believes is more representative, and indicates the company should have the right to choose the replacement, since it selected the first bellwether trial and plaintiffs selected the second. However, in a brief (PDF) filed the same day, plaintiffs urged the Court to maintain the Stinson case as the third bellwether trial, and argued Bard should be allowed to choose the fourth trial case, asking that the selection be made from a larger pool of claims at a later date.

The plaintiffs indicate the parties can learn valuable information from a trial involving the Stinson case, and argue the defendants waited too long to raise this objection objection.

“[F]or over a year, Defendants expended their own and the PSC (Plaintiffs’ Steering Committee)’s time and resources preparing the Stinson case for trial without voicing any concerns regarding its representativeness” before declaring it unfit, the brief notes. “The PSC submits that Defendants’ belated challenge of Stinson’s representativeness should be rejected.”

While the outcomes of the bellwether trials will not be binding on plaintiffs involved in other Bard hernia mesh lawsuits, they will be closely watched by lawyers involved in the litigation and are expected to have a substantial impact on any hernia patch settlements Bard may offer to avoid the need for thousands of individual cases to be set for jury trials nationwide in the coming years.