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The U.S. District Judge presiding over thousands of Bard vena cava filter lawsuits has agreed to plaintiffs’ request for ten “mature” cases to be remanded back to different federal courts for trial, while a series of early “bellwether” cases go before juries in his court.
There are currently more than 3,500 product liability lawsuits over complications with IVC filters manufactured by C.R. Bard, each involving similar allegations that certain retrievable designs were defective and prone to move out position, puncture internal organs or fracture, causing small pieces to travel throughout the body.
Given similar questions of fact and law presented in the cases, the litigation is centralized before U.S. District Judge David G. Campbell in the District of Arizona, as part of a federal multidistrict litigation (MDL), which is designed to reduce duplicative discovery into common issues in the cases and avoid conflicting pretrial schedules.
While a group of “representative” cases are being prepared for bellwether trials in the MDL, to help gauge how juries may respond to certain evidence and testimony that may be repeated throughout a large number of cases, there were several older cases that were already underway at the time the MDL was established.
Although they were not selected for the bellwether trial program, plaintiffs indicated that they were already close to being ready for trial at the time the centralized proceedings were established. More than two years ago, the parties estimated that the ten “mature” cases would be “ripe for remand” in about four to six months, but the cases remain tied up in the consolidated MDL proceedings.
In an order (PDF) issued on July 9, Judge Campbell directed the parties to file a joint proposed summary of developments in the case by the end of this month, which will be included when the cases are transferred back to U.S. District Courts nationwide.
“The Court intends to issue a suggestion of remand for the ten mature cases,” Judge Campbell wrote. “To assist the transferor courts, the suggestion of remand should include a summary of developments in the cases to be remanded and the MDL as a whole. The summary generally should chronicle the MDL proceedings, summarize the key MDL legal and evidentiary rulings that will affect the remanded cases, identify any remaining discovery or other pretrial issues, and estimate the time needed to resolve such issues and make the cases ready for trial.”
Judge Campbell indicates that a single summary is sufficient for all ten Bard vena cava filter cases, and called for parties to file a joint proposed summary by July 27.
Bard IVC Filter Bellwether Trial
The order comes after two “bellwether” trials have already gone before juries in the MDL, with mixed results, and a series of three additional trials are set to begin between September 2018 and February 2019.
The first Bard IVC filter bellwether trial went before a jury in March 2018, resulting in a $3.6 million verdict, which was recently upheld by Judge Campbell during post-trial motions. In the second trial, Bard prevailed with a defense verdict last month.
On July 6, Judge Campbell issued an order (PDF) affirming the jury verdict in the first trial. That same day he also issued a order (PDF) that read last month’s defense verdict into the record as well.
Following the bellwether trials, if Bard fails to negotiate IVC filter settlements or otherwise resolve the litigation, hundreds of individual cases may ultimately be remanded back to U.S. District Courts nationwide for separate trial dates in the future.
In addition to cases against Bard, another 3,750 Cook IVC filter lawsuits are centralized as part of a separate MDL, involving similar allegations of design defects. In May, a Texas jury awarded $1.2 million in damages to a firefighter who suffered injuries from a Cook Celect filter.
While the trials in the ten “mature” Bard cases are not considered “bellwethers”, since they were not necessarily selected as representative samples, they will still be watched closely by lawyers involved in the litigation, and may influence the settlement value in other claims.