Bard PowerPort Lawyers Make Final Preparations for Next MDL Bellwether Trial

Second federal Bard PowerPort MDL trial is currently scheduled to begin on August 18, with lawyers meeting today for a final pretrial conference.

C.R. Bard, the maker of PowerPort port catheters, wants a federal judge to divide an upcoming bellwether trial into two phases: with the jury first asked to reach a verdict on liability and compensatory damages, before being asked to consider whether punitive damages should be awarded.

The request comes as the parties prepare for the second in a series of early bellwether test trials that were chosen from more than 3,500 Bard PowerPort lawsuits pending in the federal court system, each alleging that the company distributed dangerous and defectively designed port catheter implants, which have caused patients to experience serious complications, including infections, pulmonary embolisms, blood clots and the need for additional surgery.

A port catheter is a subdermal implant consisting of a small injection port and a polyurethane catheter. The port gives access to the veins of patients who need regular drug or fluid injections, such as during chemotherapy, without the need for a new needle stick each time.

Plaintiffs say the PowerPort was not correctly designed due to defects in the materials used in the catheters, which can chip, crack and break. They accuse C.R. Bard and its Becton, Dickinson parent company of marketing the catheters as safe and effective, despite knowing they presented failure and health risks to patients.

Nearly three years ago, all federal Bard PowerPort lawsuits were consolidated in the District of Arizona as a multidistrict litigation (MDL) before U.S. District Judge David G. Campbell, who has led the litigation through its coordinated discovery and pretrial proceedings, resulting in the preparation of six representative cases that will serve as early test trials to help gauge how juries may respond to certain evidence and testimony likely to be repeated throughout the litigation.

The first trial, held earlier this year, ended in a defense verdict on some counts and a hung jury on others. However, the plaintiff recently filed a motion for a mistrial, saying the jury was given faulty instructions and were pressured by a court-ordered deadline.

Second Bard PowerPort Lawsuit Trial

The second Bard PowerPort bellwether trial is scheduled to begin on August 18, involving claims brought by Kimberly Divelbliss. On July 10 attorneys for both sides presented a proposed final pretrial order (PDF) laying out issues that both sides feel need to be addressed before the trial at a final pretrial conference scheduled for today.

These issues include contested questions of fact and law, such as whether plaintiffs can prove their claims and how many jurors should be seated. The order also lays out a disagreement over how the trial should be conducted, with defendants requesting that the trial be bifurcated, meaning split into two phases.

If Judge Campbell heeds the defendants’ request, the first phase of the trial would involve the liability claims and issues of compensatory damages, while the second phase would focus solely on whether the manufacturer should pay punitive damages and, if so, how much.

Divelbliss’s attorneys oppose the bifurcation suggestion, arguing there is no need for it in this case, but if the trial were split, the issue of whether punitive damages are owed should be handled in the first phase.

“Plaintiff does not oppose bifurcation of the amount of any punitive damages award, including evidence of Defendants’ net worth, as was done in IVC. Plaintiff contends, however, that the question of whether punitive damages are warranted (i.e., whether Defendants acted with the requisite culpable mental state) must be determined in the liability phase alongside the underlying claims.”

– Proposed Final Pretrial Order, Kimberly Devilbliss v. Becton, Dickinson and Company et al.

While the outcome of these bellwether trials will not have any binding impact on other claims, they are being closely watched and may have an influence on the average Bard PowerPort settlement amounts the manufacturer may be required to pay to resolve the litigation.

However, if the bellwether trials end without a Bard PowerPort lawsuit settlement or other resolution to the litigation, Judge Campbell is likely to begin remanding individual cases back to their originating districts for separate trial dates over the next few years.

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