Bard Hernia Mesh Trial Proceeds, After Judge Denies Motion for Judgment as Matter of Law

The U.S. District Judge presiding over all federal Bard hernia mesh lawsuits has rejected a mid-trial motion filed by the manufacturer for Judgement as a Matter of Law in the first “bellwether” case to go before a jury, finding the plaintiff has presented enough evidence to constitute a “high degree of probability” that the company’s conduct could result in substantial harm to patients, allowing the trial to proceed.

C.R. Bard currently faces more than 8,000 product liability lawsuits brought throughout the federal court system, which are currently centralized before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, as part of an MDL, or multidistrict litigatiion.

Each of the claims raise similar allegations, indicating that the company sold unreasonably dangerous and defective polypropylene hernia repair products, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems, which may fail and result in the need for risky surgery to remove the mesh.

To help the parties gauge how juries are likely to respond to certain evidence and testimony, and facilitate potential hernia mesh settlement negotiations, Judge Sargus has scheduled a series of early “bellwether” trials, which began last month.

The first Bard hernia mesh bellwether trial involves claims brought by Steven Johns, who experienced adhesions and other health problems after a Bard Ventralight ST mesh was implanted. Due to failure of the hernia patch, Johns claims he suffered painful complications and required additional surgery to remove the product from his body.

Following the conclusion of the plaintiff’s case, Bard filed a Motion for Judgment as a Matter of Law, asking Judge Sargus to dismiss the case and prevent the jury from deliberating on the evidence.

In an order (PDF) issued on September 2, the Court rejected that motion, clearing the trial to continue this week with the remainder of the defense’s case.

“Plaintiff has presented evidence of fraud such that a reasonable jury could conclude by clear and convincing evidence that Defendants’ conduct was intentionally fraudulent,” Judge Sargus wrote. “Days of testimony have been devoted to the lack of data Defendants had to substantiate their 30-day claim, to Defendants’ knowledge of this lack of scientific support, and to the fact that Defendants proceeded with the 30-day claim. The same evidence also would permit a reasonable jury to conclude that there is clear and convincing evidence that Defendants’ conduct manifested a knowing and reckless indifference toward, and a disregard of, the rights of others.”

Following the conclusion of this hernia mesh trial, Judge Sargus has scheduled a second bellwether trial to begin on January 10, 2021, involving complications with Bard Ventralex patch. The Court indicates that it will outline specific deadlines in advance of that trial over the coming weeks. However, unless Bard can establish that it can consistently defend the safety of its products at trial, it will face increasing pressure to settle claims, to avoid hundreds of individual lawsuits being set for trial in the coming years.