Court Orders Bard PowerPort Lawsuit Bellwether Process to Proceed As MDL Continues To Grow

Judge compared Bard PowerPort lawsuits to IVC filter litigation, where the majority of cases were filed more than 18 months after the claims were consolidated into a MDL

The U.S. District Judge presiding over all Bard PowerPort lawsuits filed in federal courts nationwide has indicated he will not delay the bellwether process, despite a request by the manufacturer, who attempted to argue that an insufficient number of lawsuits have been filed to select representative claims to prepare for early trial dates.

Currently, Bard faces about 115 product liability lawsuits involving allegations that users developed devastating infections, blood clots and other complications after the ports were implanted. However, plaintiffs’ lawyers have suggested that more than 2,000 lawsuits are likely to be filed in the Bard PowerPort MDL over the coming years.

The Bard PowerPort, also known as a totally implantable vascular access device (TIVAD), is used to deliver chemotherapy and other medications directly into the blood vessel, involving an injection port site, where a needle is inserted, as well as a polyurethane catheter tube that delivers the fluid to the body.

While the port catheter has been marketed as safe and effective by C.R. Bard and it’s Becton Dickinson parent company, lawsuits allege that the manufacturers knew or should have known that the Bard PowerPort catheter material is prone to degrade over time, allowing bacteria to develop or small pieces to break off.

Given nearly identical allegations raised in complaints filed throughout the federal court system over the first half of last year, the U.S. Judicial Panel on Multidistrict Litigation decided to centralize all Bard chemo port lawsuits in August 2023, 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.

To help manage the claims and gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation, Judge Campbell has established a bellwether trial process, where a group of 24 initial Bard PowerPort lawsuits will go through discovery and be prepared for a series of early trial dates.

The parties have been directed to submit the list of bellwether cases by July 1, 2024, selecting from any lawsuits filed by April 1, 2024. However, the manufacturer has argued that the court should delay the selections until the number of claims filed in the Bard PowerPort MDL has grown.

Attempt to Delay Bard PowerPort Lawsuit Selections Denied

Following a status conference held on March 1, Judge Campbell issued a case management order (PDF) addressing several issues raised at the hearing, and rejected the Defendant’s request for a delay.

Although plaintiffs indicated during the conference that large numbers of claims are still being processed for filing, the Court concluded that the current discovery expectations in the litigation should not be changed, and the bellwether process should proceed as scheduled.

In reaching this decision, Judge Campbell pointed to the trajectory of growth for Bard IVC filter lawsuits, which centralized as part of a separate MDL several years ago. That litigation involved problems with a small blood clot filter Bard sold, which was implanted into the vena cava, but was linked to reports of complications where the device punctured internal organs, moved out of position or fractured, causing small pieces to travel throughout the body.

“(T)he filter MDL grew slowly at first and faster in later years, with 81% of the cases being filed more than 18 months after the MDL began,” Judge Campbell noted. “In light of the relevant experience, the Court cannot conclude that the current case count in this MDL suggests it will be significantly smaller than Plaintiffs have predicted.”

He noted that in the IVC litigation, there were 407 cases for parties to select bellwether cases from at the time of the case selections process. However, the litigation grew to more than 8300 claims before the cases were resolved.

“While 407 cases certainly constitute a more representative sample than 115, they still represented less than 5% of the eventual total case count in the filter litigation,” he stated. “The 115 cases pending in this MDL would be a significantly smaller sample size than in the filter MDL, but Plaintiffs predicted during the conference that significant additional filings will happen in the coming weeks, increasing the pool for bellwether selection.”

Plaintiffs lawyers have told the manufacturer they expect more than 2,000 Bard PowerPort lawsuits may ultimately be filed in federal MDL or transferred to the District of Arizona for coordinated pretrial proceedings. However, many plaintiffs are still waiting on medical records or other supporting documentation needed to confirm which Bard PowerPort device was involved in their surgeries.

Exchange of Information About Bard PowerPort Complications

Following the conference, Judge Campbell also outlined several procedures for the exchange of information about Bard PowerPort complications and injuries involved in each case.

In a case management order (PDF) issued on March 11, the Court outlined the agreed contents of a Plaintiff Fact Sheet (PFS), that will be completed in each case, as well as a Defendant Fact Sheet (DFS). The court also amended a prior order to update information that must be exchanged in lawsuits alleging the Bard PowerPort failure resulted from defects to the port body or reservoir, as opposed to the catheter material.

The Court also issued a separate order (PDF) outlining the process for the joint collection of relevant records for each claim, indicating that the parties have agreed to use The Marker Group to collect medical, insurance, prescription, employment and other records for each individual plaintiff from third parties. Each plaintiff will be required to execute an authorization for the disclosure of those records, and Marker will obtain and host the records in a secure database for use by the parties during the litigation.

March 2024 Bard PowerPort Lawsuit Update

After the bellwether cases are selected, the parties will conduct further case-specific discovery, including depositions and work up for trial. Those claims will later being reduced down to six Bard PowerPort bellwether trial cases, which will be set to go before juries to hel to gauge how they may respond to certain evidence and testimony that will be repeated throughout the litigation.

Following discovery, the parties will attempt to agree on the final six bellwether claims by March 10, 2025, and it is widely expected that the first trials may begin by late 2025 or early 2026.

While the outcomes of these early bellwether trials will not have any binding impact on other claims pending in the MDL, including claims filed after the April 1 deadline, they will likely have a major impact on Bard Power Port settlement negotiations and any attempt to resolve large numbers of claims.

The next case management conference is scheduled for March 29.