C.R. Bard Hernia Mesh Bellwether Trial Delayed Until Late 2020 or January 2021, Due to COVID-19

As the ongoing COVID-19 pandemic continues to cause delays throughout the U.S. judicial system, the federal judge presiding over thousands of Bard hernia mesh lawsuits has announced that the first bellwether trial will be pushed back from September, to either late 2020 or January 2021.

C.R. Bard currently faces more than 8,000 product liability claims brought throughout the federal court system, each involving similar claims that defective polypropylene mesh products were sold in recent years, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other hernia patch products.

Plaintiffs allege the design problems caused them to experience severe abdominal pain, infections, adhesions, erosion and other complications often resulting in the need for additional surgery to remove the failed hernia mesh.

Given common questions of fact and law raised in the complaints, the federal litigation has been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and a series of early trial dates designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

While trials were previously expected to begin in May, when the COVID-19 pandemic emerged in the United States, the start of that first bellwether case was postponed until September 29, 2020. However, following a recent status conference, the parties and Court agreed it is necessary to delay the trial date again.

In a pretrial order (PDF) issued on July 20, Judge Sargus announced that the first Bard hernia mesh bellwether trial has been rescheduled for January 11, 2021. However, the parties also discussed the possibility of starting the trial in late 2020 depending on impact of the COVID-19 pandemic, as long as a decision is made at least 60 days in advance.

Parties have until November 11 to submit motions in limine to exclude certain evidence from being presented at trial, and oral arguments on moitons to exclude the admissibility of certain expert witness testimony will be held by videoconference “within the next few weeks,” according to the pretrial order.

The first Bard hernia mesh case to go to before a jury will involve a complaint filed by Steven Johns, who experienced complications with Bard Ventralight ST mesh, which is a type of polypropylene patch involved in a large number of other claims pending in the litigation.

While the outcomes of these early bellwether trial dates will not be binding on other Bard cases, they are expected to have a substantial impact on any hernia patch settlements that Bard may offer to avoid thousands of individual trials being set for trial nationwide.

The next status conference has been set for August 13.