Bard IVC Filter Bellwether Selection Process to be Considered by MDL Court

The U.S. District Judge presiding over all federal IVC filter lawsuits filed against C.R. Bard will consider a final bellwether selection plan later this month, which will lead to a series of early trial dates to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout a large number of similar cases.

There are currently about 100 product liability lawsuits filed 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, where cases are centralized 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 April 1, Judge Campbell directed the parties to submit a stipulated plan regarding selection of “bellwether” cases by April 15, which will be prepared for a series of early trial dates.

While the outcomes of these bellwether trials will not be binding on other cases in the litigations, they will be closely watched by lawyers involved in the lawsuits, 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.

Discovery in Bard IVC Filter Cases

In the same order, Judge Campbell indicated that fact discovery in the litigation is underway, and several depositions have been scheduled.

During the discovery process, the parties did raise an issue with the Court with respect to discovery related to under-reporting of problems by the manufacturer and an IVC filter warning letter sent by the FDA in July 2015, which involved two facilities that make Bard’s Denali IVC Filter and Recover Cone Removal Kits.

“The Court views discovery related to under-reporting or non-reporting of problems with retrievable filters to be clearly relevant to this case,” Judge Campbell indicated. “Actual failure rates will be relevant to Plaintiffs’ negligence and product defect claims. Evidence regarding representations made by Defendants concerning failure rates will be relevant to Plaintiffs’ claims for fraud and misrepresentation.”

With this guidance, Judge Campbell directed the parties to meet and discuss specific discovery requests regarding the under-reporting issue, and indicated that if they are unable to reach an agreement on appropriate discovery, the parties must provide the court with an outline of the areas of disagreement by April 15.

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.