Judge Clears Bard PerFix Plug Lawsuit To Proceed as Third Hernia Mesh Bellwether Case, But May 2023 Trial Date Continued
After rejecting a motion for summary judgment that sought to dismiss all claims in the third bellwether lawsuit over Bard hernia mesh, the U.S. District Judge presiding over the litigation has cleared the case involving complications with a Bard PerFix Plug to go before a jury. However, the Court did grant the manufacturer’s request to postpone the start of the trial, which was previously expected to begin on May 15, 2023.
U.S. District Judge Edmund A. Sargus is currently presiding over more than 18,000 Bard hernia mesh lawsuits brought throughout the federal court system, each raising similar allegations that C.R. Bard has sold various polypropylene products in recent years that were defectively designed, including the Bard PerFix Plug, Bard Ventralight, Bard Ventralex, Bard 3DMax and other similar systems that have been blamed for causing painful complications following hernia repair surgery.
Given similar questions of fact and law raised in the complaints, the litigation has been centralized and consolidated before Judge Sargus since August 2018, for coordinated discovery and a series of early bellwether trials, which are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.
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Two such trials have already been held before Judge Sargus. The first went before a jury in August 2021, resulting in a defense verdict for the hernia mesh manufacturer. That trial was followed by a second case that went before a jury in April 2022, resulting in a $255,000 verdict.
In August 2022, a Bard hernia mesh lawsuit in Rhode Island state court jury resulted in a $4.8 million verdict for one plaintiff, which sent a strong signal to the manufacturer about the extent of liability it may face in certain cases, as each individual lawsuit goes before a jury.
Bard PerFix Plug Lawsuit to Serve As Third Bellwether Trial
In February, Judge Sargus indicated the next bellwether trial in the federal MDL (multidistrict litigation) would begin on May 15, 2023, involving a complaint filed by Robert Stinson, Sr., who indicates that he suffered severe pain and injuries due to the defective design of the Bard PerFix Plug, which eventually had to be removed through revision surgery.
According to the lawsuit, Stinson underwent hernia repair surgery in August 2015, at which time he was implanted with an Extra-Large PerFix Plug. However, in the aftermath Stinson continuously complained of severe pain near the surgical site for years, undergoing numerous examinations, as well as pain treatments and pain medications without any lasting relief.
Despite numerous efforts to identify the source of the pain and discomfort in Stinson’s groin, it was not until June of 2017, when Stinson underwent exploratory surgery, that a doctor found a large ball of rolled up mesh and heavy scarring in the subcutaneous tissue. The doctor removed the 2.5 cm ball of rolled up mesh, reporting that the removal was “slow and extremely difficult”, and indicating the mesh showed signs of significant scarring.
Removal and replacement of the mesh resulted in significant pain reduction, according to Stinson, but he still suffers from groin pain and trouble urinating.
In response to a motion for summary judgment filed by the manufacturer, Judge Sargus issued an order (PDF) on March 13, which cleared the lawsuit filed by Stinson to proceed toward trial, directing the parties to submit proposed jury instructions by April 28.
However, just two days later, the Court issued another case management order (PDF) granting a request by Bard to delay the start of trial. No new trial date has been set, but the parties have been told to submit an updated proposed scheduling order by March 23, 2023.
Plaintiffs’ Expert Witness Survives Defendants’ Motion
On March 14, Judge Sargus issued an evidentiary motion opinion and order (PDF) which will allow Dr. David Grischkan to testify as an expert witness for Stinson, over Defendants’ objections. Grischkan is expected to testify that the Perfix Plug is defectively designed and unreliable and linked to a significant risk of complications and failure.
Defendants attempted to argue that his testimony should be excluded from the Stinson trial, however, Judge Sargus only agreed to prevent the doctor from giving the jury his opinions on the state of mind of other doctors and why they do not use the PerFix Plug or do not report complications, nor on the state of mind of the manufacturer or the designers of the hernia mesh.
March 2023 Bard Hernia Mesh Litigation Update
In August, Judge Sargus appointed a Bard hernia mesh settlement master to work with the parties to determine whether an agreement could be reached to settle large numbers of claims before additional bellwether trials were held. However, no global deal has been reached by the parties.
While the settlement negotiations continue, and additional hernia mesh trials loom, the size and scope of the litigation has continued to grow as individuals continue to file lawsuits over complications experienced with Bard products.
If the parties fail to negotiate acceptable average Bard hernia mesh settlements to resolve large numbers of claims in 2023, it is expected that Judge Sargus will consider remanding large numbers of claims back to U.S. District Courts nationwide for individual trial dates in future years.
In addition to claims against Bard, thousands of similar claims have been filed in recent years against manufacturers of other polypropylene mesh products that have resulted in widespread injuries, including more than 3,600 Ethicon Physiomesh lawsuits and 3,335 Atrium C-Qur lawsuits which were centralized in separate MDLs, and lawyers involved in each of those proceedings have reached hernia mesh settlements shortly before scheduled bellwether trials were set to begin.
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