Bard IVC Filter Lawsuits Discovery Schedule Seeks To Make Cases Trial Ready by Early 2017

With the number of Bard IVC filter lawsuits filed throughout the federal court system continuing to grow, parties involved in the litigation have proposed a discovery schedule for some of the oldest cases, which should allow the first federal trials to begin by early 2017.

There are currently about 100 product liability lawsuits pending throughout the federal court system involving complications with blood clot filters manufactured by C.R. Bard, which are implanted into the inferior vena cava (IVC) for individuals at risk of suffering a pulmonary embolism.

Each of the complaints raise similar allegations that the small, retrievable filters were defectively designed and posed an unreasonable risk of failing, with plaintiffs indicating that they suffered catastrophic injuries when the IVC filters moved out of position, perforated the vein or fractured, sending small metal fragments to the heart or lungs, in some cases.

Since August 2015, cases filed throughout the federal court system have been centralized as part of a multidistrict litigation (MDL) before U.S. District Judge David G. Campbell in the District of Arizona, to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different courts and to serve the convenience of the parties, witnesses and the courts.

As IVC filter lawyers continue to review and file additional claims, it is ultimately expected that several thousand complaints may be centralized before Judge Campbell, but many of the initial cases in the MDL were already at advanced stages when the centralized proceedings were established.

In a joint report (PDF) submitted late last week, in advance of a planned case management conference on Friday, the parties involved in the litigation proposed two separate discovery tracks in the MDL: one for certain already advanced cases and the second for newer and to-be-filed cases.

In the first track cases, which the parties indicate sit at a different position with regard to completion of discovery and readiness for trial, the proposal calls for any remaining discovery to be finished by July 1, 2016. At that point, the parties will exchange supplemental expert reports and complete expert discovery by November 4, 2016. Following pretrial motions and challenges to the admissibility of expert testimony, the proposed schedule will allow these older cases to be ready for trial to begin by early 2017.

For the remaining cases in the Bard IVC filter MDL, as well as additional future cases filed, the parties propose that a second discovery track move forward in parallel. However, due to the different and broader needs in those cases, a different schedule was proposed, which calls for the close of discovery into general issues on October 28, 2016, and the completion of common-issue expert discovery by May 19, 2017.

The parties indicate that they have had preliminary discussions regarding the formulation of a bellwether selection process, in which a small group of cases will be prepared for the first trial dates, which are designed to help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

According to the joint report, the parties plan to make another submission on March 1, which will address the bellwether process and related subjects, such as deadlines for case-specific discovery in any potential bellwether cases.

In addition to cases pending against C.R. Bard, similar litigation has been filed over problems associated with retrievable IVC filters sold by Cook Medical. There are currently about 200 Cook IVC filter lawsuits pending in a separate MDL, which has been centralized before U.S. District Judge Richard L. Young in the Southern District of Indiana since October 2014.

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

While the outcomes of these early 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 injury settlements and avoid the need for hundreds of individual trials to be scheduled in courts throughout the U.S.