Court Indicates Bard PowerPort MDL Bellwether Lawsuits Should Include 3 Infection, 2 Thrombosis and 1 Fracture Case

Judge is calling on attorneys to find agreement on bellwether selections this week, to prepare for a series of Bard PowerPort trials in the MDL.

As lawyers continue to work to identify a group of Bard PowerPort lawsuits that will be eligible for the first bellwether trials, the U.S. District Judge presiding over the federal multidistrict litigation (MDL) has issued an order outlining which types of cases he wants to see chosen, focusing on injuries that are most prevalent throughout the litigation.

There are currently more than 1,400 product liability lawsuits filed against C.R. Bard and Becton Dickinson throughout the federal court system, each raising similar allegations that design defects with certain port catheter products sold in recent years caused plaintiffs to suffer severe infections, fractured implants, migration injuries and other adverse health events.

The Bard PowerPort systems, also known as totally implantable vascular access devices (TIVADS), have been widely used in recent years to help deliver chemotherapy and other medications directly into a patient’s bloodstream, involving an injection port site where the needle is inserted, and a polyurethane catheter tube that delivers the fluids to the patient’s body.

While the Bard implantable port catheters have been sold as safe and effective products, each of the lawsuits allege that the catheter material is prone to degrade and fracture inside the body, potentially resulting in the need for revision surgery to remove the failed device.

Given common questions of fact and law raised in complaints brought in federal courts nationwide, all Bard PowerPort lawsuits are currently consolidated as part of an MDL, or multidistrict litigation, with U.S. District Judge David G. Campbell presiding over coordinated discovery and pretrial proceedings out of the U.S. District Court for the District of Arizona.

Early in the litigation, Judge Campbell established a plan to prepare a group of claims for early test trials, known as “bellwether” cases, which are intended to help the parties evaluate how juries may respond to certain evidence and testimony that could be repeated throughout the lawsuits. 

In December 2023, the parties selected a group of 24 Bard PowerPort bellwether lawsuits to undergo limited discovery. Later, the parties narrowed that list down to 15 bellwether prospects that have gone through more specific preparations over the last several months, and they are now trying to agree on six cases that will be eligible for the first trial dates.

Bard PowerPort Bellwether Case Requirements

After lawyers failed to reach an agreement, each side turned in a list of six Bard PowerPort claims late last month, which they believed were the most representative bellwether selections. There was one claim that was identified by both sides, leaving a total of 11 Bard PowerPort claims for the Court to choose from when scheduling the first trials.

Following a case management conference held last week, Judge Campbell issued an order (PDF) on May 2, providing the parties with further guidance on the types of cases he wants for the first bellwether trials, and directed the parties to meet again and attempt to reach an agreement on the final bellwether cases.

“The Court reviewed the parties’ memoranda on cases to be selected for the six bellwether trials and has tentatively concluded that the cases should, if possible, include: (a) three infection cases, two thrombosis cases, and one fracture case; (b) four polyurethane cases, one Groshong case, and one silicone case; and (c) one surgery case,” he wrote. “With this tentative guidance in mind, the parties shall meet and attempt to reach agreement on the six bellwether cases, and one alternate case, and file their respective response memoranda by May 7, 2025.”

Although the outcomes of these early bellwether trials will not have any binding impact on other claims pending in the MDL or state courts, they will be closely watched by lawyers involved in the litigation and the average jury awards are expected to have a major impact on future Bard PowerPort lawsuit settlement negotiations.

However, if the bellwether trials do not result in a Bard PowerPort settlement agreement, all of those lawsuits could be remanded back to their originating court districts for hundreds of individual trial dates.

The order indicates that the next case management conference will be held on June 3, and the parties are expected to turn in a joint memorandum ahead of the conference by May 30.