Protocol Issued For Preserving Removed Bard Hernia Mesh Products

The U.S. District Judge presiding over all federal hernia mesh lawsuits involving Bard products has issued an order establishing protocols for the preserving evidence, such as removed Bard hernia mesh, tissue and histology slides.

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.

On December 19, Chief Judge Sargus and Magistrate Judge Kimberly Jolson issued a case management order (PDF) setting the preservation protocols overseeing pathology specimens “including mesh explants, histology slides, paraffin blocks containing tissue, loose mesh, mesh and tissue, dry mesh, and gross material…”

The protocols set which companies the parties can use to document and store the specimens, how the evidence should be handled, and how specimens should be gathered and preserved from future revision surgeries.

Parties conferred on the protocols during a status conference (PDF) held on December 18, at which time the parties also reviewed the plans for preparing a small group of cases for early trial dates set to begin in 2020 to help parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

Judge Sargus has indicated that the Court will select three Bard hernia mesh 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.