Bard PowerPort Lawsuits To Be Prepared For Series of Early Bellwether Trials in MDL

The presiding judge has determined that six Bard PowerPort lawsuits will ultimately be chosen for the first bellwether trials.

As a growing number of Bard PowerPort lawsuits continue to be filed by individuals nationwide, each raising similar allegations that the implantable port catheters are prone fracture and fail, the U.S. District Judge presiding over the litigation has recently outlined the process for parties to select and prepare a group of 48 cases for an initial bellwether pool, some of which will later be eligible to be the first cases to go before juries.

In recent years, the Bard PowerPort has been widely used to deliver chemotherapy and other medications directly into the blood vessel. The device involves an injection port site, where a needle is inserted, as well as a polyurethane catheter tube that delivers the fluid to the body.

Although the port catheters have been marketed as safe and effective, dozens of product liability lawsuits have been filed in recent months against Becton, Dickinson & Co. and its Bard subsidiaries, each raising similar allegations that the manufacturers knew or should have known that the Bard PowerPort material is prone to degrade over time, allowing bacteria to develop or small pieces to break off.

Given common questions of fact and law raised in the claims, the U.S. Judicial Panel on Multidistrict Litigation (JPML) decided in September to centralize the lawsuits before U.S. District Judge David G. Campbell, in the U.S. District Court for the District of Arizona, for coordinated discovery and bellwether trials, which will test allegations that design defects caused the Bard port catheters to fracture and fail, resulting in severe infections, blood clots and other life-threatening injuries.

Bard PowerPort Lawsuit Bellwether Trial Selection Schedule

Last month, Judge Campbell called for the parties to exchange a list of 24 representative cases each, for a total of 48 that must be selected by July 1, 2024, which will make up the initial Bard PowerPort lawsuit plaintiff pool.

Following an initial discovery process, the parties will later select 15 of those cases for inclusion in a “Discovery Group 1” by December 17, 2024, with each party picking five cases, and the last five cases being selected jointly.

Following a status conference last month, Judge Campbell issued a case management order (PDF) on November 22, providing more instructions on the bellwether case selections. The order calls for the plaintiff fact sheets to be completed for the 48 selected cases by July 31, 2024.

The pool will be whittled down to 15 cases selected from the initial pool by December 15, 2024, with each side selecting five cases for automatic inclusion into the discovery group pool. Judge Campbell ordered the parties to work together to select the five remaining cases.

If the parties are unable to agree on the five final cases, each will submit their own list of the five final selections. The Court will then determine which of those Bard PowerPort lawsuits to include in the discovery pool.

Six cases from that pool will be selected by March 10 to form Bellwether Group 1, which will be the first cases prepared for early trial dates.

While plaintiffs had previously pushed for 10 bellwether trials, Judge Campbell has indicated he only intends to put six cases before juries to help the parties gauge the relative strengths and weaknesses of their claims.

“The Court does not intend to try more than 6 bellwether cases in this MDL,” Judge Campbell wrote. “The parties may raise issues concerning additional bellwether cases and trials if they deem additional cases warranted.”

Bard PowerPort Lawsuit Discovery Schedule

In a separate case management order (PDF) issued the same day, Judge Campbell outlined the discovery process for the litigation, calling for common-issue fact discovery to be completed by January 31, 2025. Expert depositions are to be completed by June 30, 2025, the order indicates.

The order also calls for motions for summary judgment to be filed by July 21, 2025, and responses and replies to those motions will be completed by September 8, 2025.

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 PowerPort settlements the manufacturer may offer to avoid each claim being separately remanded for trial in U.S. District Courts nationwide.