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The next in a series of early bellwether trials involving complications from Bard IVC filters is set to begin next month. However, the U.S. District Judge presiding over the litigation indicates that the next two cases will not go before a jury until February and May 2019.
The cases are part of a massive litigation, involving more than 3,500 product liability claims filed against C.R. Bard over design defects associated with the Bard G2, Bard Recovery, Bard Denali and other retrievable IVC filters sold in recent years.
The small devices are implanted into the vena cava to prevent blood clots from reaching the lungs and causing a pulmonary embolism. However, plaintiffs allege that certain designs sold by Bard are prone to fail, and have been linked to devastating injuries after they 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 complaints filed throughout the federal court system, the claims are centralized before U.S. District Judge David G. Campbell in the District of Arizona as part of an MDL, or multidistrict litigation. Judge Campbell has established a “bellwether” program, where a series of early trial dates are underway, which are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.
Earlier this year, the first Bard IVC bellwether case ended in a $3.6 million award, after a federal jury found that the manufacturer recklessly disregarded the safety of consumers who received their filters. However, a second case ended in a defense verdict for Bard in June 2018.
A third bellwether trial is scheduled to begin on September 18, involving claims presented by Lisa Hyde, who experienced injuries when her Bard IVC filter fractured. However, the parties now dispute the exact model of Bard filter that was implanted, and whether the case should be presented in separate phases for compensatory damages and punitive damages, which Bard may be ordered by the jury to pay as a form of punishment for reckless behavior.
In a joint report (PDF) issued on August 10, parties outlined their respective positions regarding the identification of the specific IVC filter used during Hyde’s surgery. Throughout the pretrial proceedings, the case has been identified as one involving a Bard G2, and it was selected as a representative case involving this product. However, the manufacturer now claims there is no conclusive evidence that Hyde received a Bard G2 filter, arguing that it should be a jury question. Plaintiffs maintain that the defendants have made multiple statements throughout the litigation positively and definitively identifying Hyde’s implant, and that they should be prevented from now arguing that it is a Bard Denali filter.
The Defendants’ Fact Sheet identifies the filter, and its product catalog number four different times, and defense attorneys even halted questioning of one doctor during deposition, saying that there was no need for the doctor to identify the device because they had established that it was a G2 filter. The plaintiffs also point out that the interventional radiologist who actually implanted the filter testified that it was a Bard G2.
The plaintiffs say that the defendants should be prevented from raising the identity of the filter as a question of fact before the jury.
In addition to questions over the identity of the filter, Bard also submitted a motion (PDF) on August 10, calling for Hyde’s trial to be bifurcated into two phases. The first phase would determine liability, compensatory damages and whether punitive damages should be awarded. The second phase would determine the amount of those punitive damages, if necessary.
Next Bard IVC Filter Trial Delayed
These actions followed a case management order (PDF) issued by Judge Campbell on August 2, indicating that the next bellwether trial, previously expected to begin in November 2018, must be delayed.
A claim brought by Debra Mulkey was originally scheduled to go before a jury in September, but was moved to a November trial date due to the plaintiff’s health condition. However, the Court order indicates that those health issues persist, and that she would be unfit for trial in November.
“The memorandum on Ms. Mulkey makes clear that her case should not be scheduled for trial in November,” Judge Campbell wrote. “She continues to undergo medical testing attempting to identify the cause of her concerning health issues, and scheduling her for the stress of a three-week trial in November would be unwise. The Court will try Ms. Mulkey’s case in 2019.”
Since there is no case ready to replace Mulkey’s on the court’s schedule, the fourth bellwether trial will begin in February 2019 as planned, and Mulkey’s case will go before a jury in May 2019. Judge Campbell rejected plaintiffs request to speed up discovery of that fourth case, and move the trial date up, indicating that the request was not realistic given the time constraints and the amount of work to be done.
While the outcome of these bellwether trials are not be binding on other claims in the litigation, they are being closely watched by parties involved, and may influence eventual negotiations to reach IVC filter settlements, which would avoid the need for thousands of separate trials to be held nationwide.
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. Last month, a Texas jury awarded $1.2 million in damages to a firefighter who suffered injuries from a Cook Celect filter.