Bard PowerPort Lawsuit MDL Motion To Be Considered By U.S. JPML at July 27 Hearing

Plaintiffs and defendants disagree about whether a Bard PowerPort MDL should be established for lawsuits filed throughout the federal court system

A panel of federal judges will hear oral arguments later this month to determine on whether all Bard PowerPort lawsuits should be consolidated before one judge for coordinated discovery and pretrial proceedings, as part of a multidistrict litigation (MDL).

In recent months there have been a growing number of product liability lawsuits filed throughout the federal court system, each involving similar injuries and complications from Bard PowerPort or similar Bard implantable port catheter system, 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 serious injuries.

Given common questions of fact and law raised in the claims, a group of plaintiffs filed a motion to establish a Bard PowerPort Lawsuit MDL in May 2023, asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to transfer all claims brought throughout the federal court system to one U.S. District Court, as part of an effort to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and promote judicial efficiencies.

At the time the motion was filed, only about 10 port catheter lawsuits were pending against Bard nationwide. However, a steady number of new complaints have been brought in recent weeks, and it is widely expected that hundreds, if not thousands, of additional complaints may be filed in the coming months.

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 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.

The manufacturer has opposed the creation of an MDL for the Bard PowerPort lawsuits, claiming that formal consolidation is unnecessary, and arguing that the litigation can be managed through less formal coordination efforts among the lawyers involved.

Bard indicates it has been able to resolve a number of previously filed lawsuits over complications with the port catheter, suggesting that prior Bard PowerPort lawsuits settled within an average of 18 months, usually without any depositions being conducted. However, plaintiffs’ lawyers maintain that the litigation has shifted, and formal coordination is now appropriate to deal with the rapidly growing number of lawsuits.

JPML to Hear Bard PowerPort Lawsuit Consolidation Arguments

According to a Notice of Hearing Session (PDF) issued by the U.S. JPML, the Bard PowerPort MDL motion will be considered during a hearing session on July 27, at the Phillip Burton U.S. Courthouse, in San Francisco, California.

The panel will decide whether to establish an MDL, and what is the most appropriate venue. Of the 10 Bard PowerPort lawsuits pending at the time the motion was filed, claims were pending in five different U.S. District Courts, with six of the cases brought in the Western District of Missouri, where plaintiffs asked that the Bard PowerPort MDL be established. However, the defendants indicate 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 PowerPort settlements or another resolution for the claims.