Bard Opposes Consolidation of Lawsuits Over Port Catheter Complications

Although there are a growing number of Bard PowerPort lawsuits being filed throughout the federal court system, each raising similar allegations that plaintiffs suffered devastating complications from the port catheter design, the manufacturer is opposing an effort to consolidate the claims before one judge for pretrial proceedings.

Given common questions of fact and law raised in the claims, a group of plaintiffs filed a motion to centralize all lawsuits over Bard port catheter complications last month, calling for the litigation to be transferred to one U.S. District Court to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and promote judicial efficiencies.

Each of the claims involve problems with the Bard PowerPort system or similar Bard implantable port catheters, which are placed below the skin to provide easy access for the delivery of medications, such as chemotherapy. The implanted ports consist of an injection site where a needle is inserted, as well as a polyurethane catheter tube that carries the drug into the blood vessel. However, plaintiffs allege that the Bard Ports were defectively designed and prone to fracture or fail, causing infections, blood clots and other complications.

While there are currently only about 10 Bard Port Catheter lawsuits pending throughout the federal court system, it is widely expected hundreds of additional complaints will be filed in the coming weeks and months. As a result, plaintiffs asked the U.S. Judicial Panel on Multidistrict Litigation (JPML) to establish coordinated pretrial proceedings before one judge in the Western District of Missouri.

Bard Opposes Port Catheter Lawsuit Centralization

In complex product liability litigation, where large numbers of claims are brought by users of the same medical device or medication, each experiencing the same or similar injuries, it is common for the U.S. JPML to establish an MDL (multidistrict litigation) for pretrial proceedings and a series of early bellwether trials, which are designed to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

In an brief (PDF) filed on June 16, the manufacturers opposed the attempt to establish a Bard Port Catheter MDL, indicating that the cases would not benefit from formal consolidation.

Although Bard port catheter implants have been widely used for decades, the manufacturers indicate there have only been a limited number of claims presented, and the FDA has not required any recalls of PowerPort devices due to complications, high failure rates, or defects.

The defendants also claim they have resolved a number of cases in the past with little difficulty, indicating that settlements or resolutions were reached within an average of 18 months. In addition, the manufacturer indicate the currently filed cases involve different ports, medical providers and distinctly different patient complications, making them too individualized to benefit from coordinated pretrial proceedings.

“The pending actions all have unique characteristics that weigh against centralization,” the opposition brief states. “Different medical providers implanted different ports into each plaintiff between 2015 and 2022 for the delivery of vital medications to treat pre-existing medical conditions. Those plaintiffs allegedly experienced distinct complications, prompting medical intervention.”

Plaintiffs Defend Consolidation of Port Catheter Lawsuits

As the defendants seek to have the JPML reject the request for the creation of a Bard PowerPort MDL, a growing number of plaintiffs have filed briefs supporting such a measure.

One brief in support of consolidation (PDF) was filed by plaintiff Kimberly Divelbliss, who argued that the cases all involve the same or substantially similar questions of fact, which would benefit from consolidation. The brief indicates every standard used to measure whether a case should be consolidated into a multidistrict litigation is met by the lawsuits over port catheter complications.

Another support brief (PDF), filed on behalf of plaintiff Kriston Kelley, also filed on June 16, makes similar arguments.

“The Related Implanted Port Catheter Products Actions are based on the same or substantially similar questions of law and fact,” Kelley’s brief states. “Coordination is necessary to avoid duplicative discovery, promote just and efficient conduct of these cases, and prevent inconsistent rulings.”

Plaintiffs are asking for the lawsuits to be consolidated in the Western District of Missouri. However, the defendants stated in their brief that if the JPML does decide to centralize the claims, it should do so either in the District of Utah, where Bard Access Systems is headquartered, or the District of Arizona.

If an MDL is established, each individual claim may later be remanded back to the U.S. District Court where it was originally filed for trial, if the parties fail to negotiate Bard port catheter settlements or another resolution for the claims.