Plaintiffs Push for Remand of Bard IVC Filter Lawsuits, as MDL Bellwether Trials Continue

As a series of early Bard IVC filter lawsuits continue to go before juries in the federal MDL (multidistrict litigation), as part of a “bellwether” program designed to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout thousands of cases, plaintiffs are pushing for a group of older cases to be remanded back to the U.S. District Courts where they originated, indicating that they are ready for trial and there is no reason to delay putting the cases before juries.  

There are currently more than 3,500 product liability lawsuits over IVC filter complications that are pending against C.R. Bard in the federal court system, each involving similar allegations that certain retrievable blood clot filters were defectively designed 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 was centralized before U.S. District Judge David G. Campbell in the District of Arizona in August 2015, to reduce duplicative discovery into common issues in the cases and avoid conflicting pretrial schedules. However, at the time the federal MDL was established, there were already a number of “mature” cases that had long been underway and were already close to being ready for trial.

As part of the coordinated pretrial proceedings before Judge Campbell, a group of representative “bellwether” cases were selected for a series of early trial dates. These cases did not necessarily include the oldest claims in the litigation, but were selected based on their ability to help parties weigh the relative strengths and weaknesses of certain claims that are common among large numbers of cases.

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. Bard prevailed in a second trial, which ended in a defense verdict earlier this month, and a third bellwether trial is set to begin on September 18.

In a submission (PDF) filed on June 15, plaintiffs are now requesting that a previously identified group of ten “mature” cases should all be remanded to U.S. District Courts nationwide for individual trial dates, while the MDL continues with additional bellwether trials.

“Plaintiffs believe that the previously identified ‘mature’ cases should all be remanded to their courts of original jurisdiction at this point.,” according to the filing. “All common discovery, expert disclosure, and discovery has been completed; and this Court has ruled on all summary judgment issues, Daubert issues, and other generic issues that apply to all the cases in the MDL. Simply, further participation of these cases in the MDL will not provide any additional benefits to the parties and there is no reason to delay remand.”

The same submission included plaintiffs’ proposed selections for cases that should serve as the fourth, fifth and sixth bellwether trials, which will proceed to trial in the MDL over the coming months.

Although Bard has indicated that it does not agree to the immediate remand of the ten “mature” cases, contending that it will “disrupt the bellwether process,” plaintiffs indicate that the parallel trial schedules will actually give the parties more data. In addition, since these ten cases are likely the oldest cases, plaintiffs point out that they would have had trial dates scheduled several years ago if the MDL had not been established.

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.

While the outcome of these bellwether trials are not be binding of remaining 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.