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The U.S. District Judge presiding over all federal Bard IVC filter lawsuits indicates that the Court will consider whether to establish a separate track for cases likely to be resolved in settlement, or whether to simply begin remanding all cases after an upcoming bellwether trial.
There are currently more than 5,700 product liability cases pending in a federal multidistrict litigation, each involving allegations that plaintiffs experienced complications with IVC filters manufactured by C.R. Bard, including reports that the retrievable blood clot filters moved out of position, punctured internal organs or fractured, causing small pieces to travel throughout the body.
Given similar questions of fact and law presented in the cases, the litigation has been centralized before U.S. District Judge David G. Campbell in the District of Arizona since August 2015, for coordinated discovery and a group of “bellwether” trials designed to help gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.
After mixed results in a serious of early trial dates, Judge Campbell has already begun remanding “mature” cases that were ready for trial, and has previously suggested that large numbers of cases will be sent back to different U.S. District Courts nationwide for separate trials if Bard IVC filter settlements are not reached by the parties to resolve the litigation.
In a case management order (PDF) issued on February 8, Judge Campbell agreed to consider a proposal by C.R. Bard, which asks the court to establish a separate track for cases in the MDL that are likely to be settled, including cases that have been settled in principal or which are near settlement, rather than remanding all cases. Judge Campbell indicated that the Court is willing to consider such a procedure and asked the parties to submit a joint proposal by March 1.
“Any such proposal would need to specify the basis on which a case would be identified to be placed on a settlement track rather than being remanded to the transferor court, establish a schedule under which cases on the settlement track would either reach a completed settlement or be remanded, and a schedule for when the settlement track would be initiated and how long it would remain in place,” according to the order.
After receiving the submission, the court will consider whether a separate track for certain Bard IVC filter cases that may settle is appropriate, or whether the MDL should simply begin remanding all cases back to U.S. District Courts nationwide if the litigation is not resolved following the last bellwether trial.
A lawsuit filed by Debra Tinlin is currently set for trial to begin before Judge Campbell on May 13, 2019, involving a fractured Bard Recovery filter, which resulted in the need for open heart surgery. However, given the plaintiffs current health condition, it is unclear whether she will be able to travel to Arizona for trial, and the parties have been directed to confer about the possibility of Tinlin participating in the trial remotely from the federal court in Wisconsin if she is unable to travel.
This last scheduled bellwether trial will be closely watched given the mixed results from earlier trials. In April 2018, the first Bard IVC filter trial ended in a $3.6 million award, after a jury found that the manufacturer recklessly disregarded the safety of consumers who received their filters. However, subsequent cases have either ended in a defense verdict in favor of the manufacturer, or been dismissed before trial began.
In addition to the cases filed against Bard, another 3,750 Cook IVC filter lawsuits are centralized as part of a separate MDL, involving similar allegations of design defects. Last week, an Indiana jury found that Cook Medical should be required to pay $3 million in compensatory damages to one plaintiff, and is still considering additional punitive damages during a second phase of the on-going trial.