Bard Port Lawsuits Involving Reservoir Defects May Be Combined With MDL for PowerPort Catheter Failures

A panel of federal judges are scheduled to meet later this month, to determine whether to expand the scope of a federal multidistrict litigation (MDL) established for all Bard port catheter lawsuits, and assign claims involving port reservoir defects to the same U.S. District Judge.

In recent months, Becton, Dickinson & Co., and its Bard subsidiaries have faced a steadily growing number of product liability lawsuits involving problems with it’s PowerPort and other port catheter systems, which are placed below the skin to provide easy access for the delivery of medications, such as chemotherapy.

Most of the claims point to allegations involving a common defect with the Bard PowerPort, involving the use of barium sulfate in the design of the catheter material, which plaintiffs indicate degrades over time, leaving pits and fissures throughout the body and surface of the catheters, and potentially causing catastrophic port catheter fracture injuries. However, in recent weeks several complaints have been filed involving defects with the port reservoir, indicating that the use of polyoxymethylene in the plastic components caused the device to fail.

U.S. JPML Centralized Bard Port Lawsuits Involving Catheter Defects

In August 2023, the U.S. Judicial Panel on Multidistrict Litigation decided to centralize all Bard PowerPort lawsuits filed throughout the federal court system, transferring the claims to U.S. District Judge David G. Campbell, in the District of Arizona, for coordinated discovery and pretrial proceedings as part of a federal MDL, or multidistrict litigation.

The decision was based on common factual questions raised in the lawsuits filed at that time, each of which involved allegations that the Bard ports contained catheter components with a concentration of barium sulfate that is too high, which reduces the material integrity of the catheter, and can lead to infections, migrations, blood clots and fractures.

On December 12, Bard filed a motion to vacate (PDF) the transfer of three recently filed lawsuits to the MDL, indicating that the complaints raise “novel” theories regarding port reservoir defects, which should not be combined with claims involving defects with the catheter material.

“If these cases are transferred to the MDL, the parties will be required to, among other things, expand the scope of discovery into an unrelated component part, seek third-party discovery from different material supplier, retain different specialized experts for the issuance of new expert reports, and devote one or more bellwether trials to the port reservoir allegations,” according to the motion. “Given the substantial amount of work to be done in the catheter cases, these cases will not receive the individualized attention that they would receive in their home districts.”

Bard PowerPort Reservoir Defect Lawsuits May Be Added to MDL

The unique allegations raised in the three lawsuits involve the decision to design the port reservoir with polyoxymethylene (“POM”), which is an acetal thermoplastic polymer material that is lower-cost than other titanium designs the manufacturer could have used.

Lawsuits claim the POM material is known to undergo oxidative degradation during processing, as well as when exposed to radiography, which can lead to the reduction of the mechanical properties of the polymer, causing it to become weak and prone to fracturing, or colonizing bacteria that causes severe infections.

As a result, the plaintiffs claim that they suffered injuries when the Bard port failed that are substantially the same as those related to the use of barium sulfate infused catheters.

In response to the manufacturers efforts to block the reservoir defect lawsuits from being transferred to the MDL, an opposition (PDF) was filed last week by plaintiffs involved in two of the cases, Ryan Meadors and Bernadette Franks, pointing to the large number of similarities and overlapping injuries in the cases, which involve the same Bard port products.

“Plaintiffs Ryan Meador and Bernadette Franks bring claims which substantially overlap those brought by MDL plaintiffs, including claims that the design of the products at issue in those cases – models regarding which there are already numerous claims pending in the MDL – included biomaterials which degrade in the body over time, causing irregularities on the device surfaces which led to bacterial colonization and infection,” according to the response. “The only material distinction is that the Actions allege an additional manner in which the devices’ designs lead to surface degradation and, in turn, bacterial colonization and clinical infection.”

The U.S. JPML issued a notice of hearing session (PDF) last month, indicating that oral arguments over whether to include the Bard Port Reservoir lawsuits in the MDL will be held during a hearing session scheduled for Thursday, January 25, 2024, at the U.S. Bankruptcy Court Federal Building in Santa Barbara, California.

January 2024 Bard PowerPort Lawsuit Update

While waiting for a ruling from the MDL panel, Judge Campbell held a case management conference regarding claims already transferred to his court on January 8, 2024.

According to a Case Management Order (PDF) issued earlier this week, the parties anticipate the U.S. JPML will rule promptly on whether to add the Bard port reservoir defect lawsuits to the MDL, which will determine whether a Master Complaint previously filed by the plaintiffs will need to be amended to include these new allegations.

Last year, Judge Campbell issued an earlier order that outlined steps the parties will take to prepare a small number of Bard Port lawsuits for bellwether trials, which will be used to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

The parties have been directed to complete plaintiff fact sheets in 48 representative claims selected by July 31, 2024. That pool will then be whittled down to 15 cases selected by December 15, 2024, with each side choosing five cases for automatic inclusion into the discovery group pool, and the remaining cases being determined by the Court. Six cases from that pool will be selected by March 10, 2025 to form Bellwether Group 1, which will be the first cases prepared for early trial dates.

While the outcomes of these early bellwether trials will not have any impact on other claims pending in the MDL, they will be closely watched by lawyers and will likely have a substantial impact on the amount of Bard Port settlements the manufacturer may offer to avoid each claim being separately remanded for trial in U.S. District Courts nationwide.