Process for Selecting Bard IVC Filter Bellwether Lawsuits Outlined in MDL

The U.S. District Judge presiding over all federal IVC filter lawsuits pending against C.R. Bard has outlined the process for selecting a group of nearly 50 cases that will be eligible for early “bellwether” trials, which are designed to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout hundreds of other claims.

There are currently nearly 400 product liability lawsuits pending throughout the federal court system involving individuals who experienced problems with Bard IVC filters, where the small devices implanted to prevent blood clots from traveling to the lungs moved out of position, perforated the vein or fractured into small fragments.

As IVC filter injury lawyers continue to review and file additional claims over the coming months and years, it is ultimately expected that several thousand cases may eventually be consolidated as part of a federal multidistrict litigation (MDL) established late last year, which centralized the cases before U.S. U.S. District Judge David G. Campbell in the District of Arizona for coordinated pretrial proceedings.

In a case management order (PDF) issued on May 5, Judge Campbell indicated that any case filed and properly served by April 1, 2016 will be eligible for inclusion in a “bellwether” process, where a small group of cases will go through case-specific discovery in preparation for a series of early test trials.

By June 29, each side has been directed to identify 24 cases each for the first group of potential bellwether cases, for a total of 48 cases in all. After completing plaintiff and defense fact sheets and records discovery, the plaintiffs and defendants will again narrow the selection down to 10 cases each in early December 2016, for a total of 20 lawsuits that will be part of the first discovery group.

By March 1, 2017, the list will again be narrowed down to six Bard ICV filter bellwether lawsuit, after which time a trial date will be set.

While the outcomes of these bellwether Bard trials will not be binding on other cases in the litigations, they will be closely watched by lawyers involved in the litigation, and they may influence eventual negotiations to reach IVC filter settlements and avoid the need for hundreds of individual trials to be scheduled in courts throughout the U.S.

IVC Filter Risks

At issue in the litigation are problems with retrievable IVC filters sold by C.R. Bard, which were designed to be removed once the risk of a blood clot has passed. However, thousands of severe and sometimes fatal injuries have been linked to retrievable filters, leading the FDA to recommend that doctors remove IVC filters within about one to two months after they are no longer needed.

According to allegations raised in the lawsuits, Bard has failed to adequately warn doctors about the importance of retrieving their devices, and withheld information about problems with migration or fractures, which may cause small pieces to travel to the heart or lungs.

In addition to Bard IVC filter lawsuits, a number of similar cases have been filed against Cook Medical over similar retrievable filters. There are currently about 200 Cook Celect and Gunther Tulip IVC filter lawsuits pending as part of a separate MDL, which is centralized before U.S. District Judge Richard L. Young in the Southern District of Indiana.

As part of the coordinated pretrial proceedings in the Cook IVC filter MDL, a similar bellwether program has been established, in which a group of four cases are expected to be prepared for trial dates after September 15, 2016.