Bard Fails in Attempt to Strike Plaintiffs’ Expert Reports Over Hernia Mesh Problems

The U.S. District Judge presiding over all federal Bard hernia mesh lawsuits has rejected a request by the manufacturer to strike supplemental expert reports submitted by plaintiffs, as the start of the first bellwether trial approaches in less than two months.

More than 5,000 product liability complaints are currently pending in the federal court system against C.R. Bard, each involving similar allegations that plaintiffs suffered painful and debilitating complications following hernia repair procedures that involved the use of Bard’s Ventralex, Ventralight, Perfix, 3DMax and other hernia patch designs sold in recent years.

Given common questions of fact and law raised in lawsuits brought in U.S. District Courts nationwide, the federal court system has consolidated the Bard hernia mesh cases before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and a series of early trial dates that are currently scheduled to begin in May 2020, July 2020 and September 2020.

On March 10, Judge Sargus issued two evidentiary motion orders, both of which dealt with requests from the manufacturer to strike supplementary reports submitted by plaintiffs’ expert witnesses, involving the link between hernia mesh complications and the design of the hernia patches.

In the first order (PDF), the Court addressed a request to strike a supplemental report and reliance list by Dr. David Grischkan, whose testimony would play a roll in the first bellwether trial, slated for May 11, 2020. The report deals with specific causation in the case of Steven Johns, who was selected as the first bellwether plaintiff.

Judge Sargus denied Bard’s effort to have Dr. Grischkan’s supplemental report thrown out, but will allow the company to have an expert submit a report to refute Grischkan’s findings.

The second order (PDF) deals with an almost identical situation with another plaintiff’s expert, Dr. Ahmed El-Ghannam, who is also filing a pair of supplemental reports in support of Johns’ case. However, in that case, the court granted Bard’s request to strike most of one report, but cleared a second report by El-Ghannam for use in the upcoming trial.

While the outcomes of the Johns case and other early “bellwether” trials will not be binding on other Bard hernia patch lawsuits, they are expected to have a substantial impact on any hernia mesh settlements that Bard may offer to avoid thousands of individual trials being set for trial nationwide.