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Court Outlines Process for Selecting Bard Hernia Mesh Cases For First Three Trial Dates

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With several thousand Bard hernia mesh lawsuits pending, the U.S. District Judge presiding over the federal litigation has outlined the process for selecting three “bellwether” trials, which will begin later this year to help gauge how juries may respond to certain evidence that will be repeated throughout the cases.

There are currently more than 3,500 product liability lawsuits pending against C.R. Bard in a federal multidistrict litigation (MDL), each raising similar allegations that plaintiffs experienced painful and debilitating complications following hernia repair due to design problems with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene products sold in recent years.

Given common questions of fact and law raised in the complaints, the federal litigation is centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and pretrial proceedings, including a series of early trial dates set to begin in May, July and September 2020.

In a case management order (PDF) issued earlier this month, Judge Sargus outlined how the parties will select the initial trial cases, which will be selected from a small pool of “bellwether discovery” claims that have been prepared for trial.

There are currently six cases that have gone through pretrial discovery, including three claims initially selected by each side, which were designed to be representative of allegations repeated throughout various complaints.

Judge Sargus indicates that the Court will now select three claims, after the parties submit briefing that outlines their recommendations for the most appropriate claims to put before juries first.

On January 3, 2020, the parties will simultaneously file their respective briefs, which are not to exceed ten total pages. Each side will then be permitted to file a response to the other side’s proposed cases by January 8, and an in-person status conference will be held on January 10 to make the final selections and set the trial schedules.

In the event any of the three cases set for trial are subsequently dismissed, Judge Sargus indicates that the Court may allow the selection of a replacement case by either the Plaintiffs or Defendants, depending on the circumstances of the dismissal.

Following the selection of Bard hernia mesh bellwether trial cases, the parties must file any dispositive motions and Daubert challenges to the admissibility of expert testimony by January 17, 2020, with oral arguments to be scheduled at a later date.

The bellwether trials are set to begin on May 11, July 13 and September 14, 2020. While the outcome will not be binding on other claims, if the parties fail to reach hernia mesh settlements to resolve large numbers of cases, Judge Sargus may set additional claims for trial or start remanding large numbers of lawsuits back to U.S. District Courts nationwide for individual trial dates.

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