Bard Hernia Mesh Case Selection Process For Bellwether Trials Outlined By MDL Judge

The U.S. District Judge presiding over all federal Bard hernia mesh cases has outline the process for selecting a small group of representative claims, which will be prepared for a series of three early trial dates between May and September 2020.

There are currently more than 200 product liability lawsuits pending against C.R. Bard throughout the federal court system, each involving similar allegations that plaintiffs experienced painful complications that were caused by design defects associated with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene products sold in recent years. However, as hernia mesh lawyers continue to review and file cases in the coming months and years, it is ultimately expected that the litigation will involve thousands of lawsuits brought by individuals nationwide.

Given similar questions of fact and law raised in the complaints, all federal Bard hernia mesh cases have been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation.

In a case management order (PDF) issued on November 20, Judge Sargus established the procedures for selecting a group of twelve representative claims, which will go through case-specific discovery and be prepared for the first bellwether trial dates, which will be used to help gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

By January 31, 2019, the parties have been directed to each select six cases, which the Court will review to ensure they accurately represent a sample of the lawsuits pending in the MDL. Following several months of core discovery, the parties will each select three of those cases to be part of a “Bellwether Trial Pool”, resulting in a total of six cases by July 12, 2019.

Following expert discovery and briefing by the parties, Judge Sargus indicates that the Court will select three trial cases by February 14, 2020, which will be the first to go before juries in the federal court system on May 8, 2020, July 13, 2020 and September 14, 2020.

Each of the cases raise similar allegations that polypropylene mesh used in Bard hernia repair products was unreasonably defective and dangerous, creating a risk of painful and debilitating complications where the mesh may fail and requires individuals to undergo additional surgery to remove the patch from their body.

Similar consolidated pretrial proceedings have also been established for Atrium C-Qur lawsuits and Ethicon Physiomesh lawsuits, which involve competing hernia repair products that have also been linked to a high rate of failure and problems. The first bellwether trial dates in each of these other MDLs are expected to begin in early 2020.

While the outcomes of these “test” trials will not be binding on other claims, they may help the parties gauge the relative strengths and weaknesses of cases, and facilitate hernia mesh settlements with Bard and other manufacturers, which would avoid the need for hundreds of individual cases to be scheduled for trial over the coming years.