New Trial Sought for First Bard PowerPort Bellwether Lawsuit

Motion for mistrial argues that instructions confused jurors and led them to rush to a partial judgment based on the mistaken belief that they faced a deadline.

The plaintiff in the very first Bard PowerPort lawsuit bellwether trial is asking the U.S. District Judge presiding over the consolidated litigation to grant him a new trial, arguing that the jury was given improper instructions that led to the defense verdict.

C.R. Bard and Becton Dickinson’s PowerPort is a port catheter, consisting of a small injection port implanted below the skin, and a polyurethane catheter. The device is commonly used for patients who need regular drug or fluid infusions, such as chemotherapy patients, allowing treatment to be delivered without a new needle stick each time.

However, numerous reports in recent years have claimed that the devices are prone to complications involving infections, fractures, failures and migration, allegedly linked to defects in the design and materials used in the implants.

Those allegations have led to more than 3,000 Bard PowerPort lawsuits being brought nationwide. The filings contend that the manufacturers marketed the port catheters as safe and effective despite knowing they were prone to failure. 

These claims also indicate that the companies did not correct the design or adequately warn patients and physicians about risks such as pulmonary embolism, blood clots, infections and the need for surgical removal of failed implants.

Questions of common facts and law shared throughout the litigation led to all federal Bard PowerPort lawsuits being consolidated nearly three years ago in the District of Arizona, where U.S. District Judge David G. Campbell has led the litigation through coordinated discovery, pretrial proceedings and preparation of six representative cases to serve as early test trials.

A lawsuit brought by Robert Cook, of Minnesota, was chosen to be the first of these bellwether trials, which are designed to give the parties a chance to see how juries weigh the evidence and arguments that would likely be shared throughout the litigation. These types of trials are intended to help the parties work out potential settlement agreements that would resolve the litigation, instead of having thousands of expensive and time-consuming trials flood the federal court system.

Following the trial of Cook’s claim, an Arizona jury returned a verdict in early May in Bard’s favor, determining that the manufacturers were not liable for failing to warn about potential PowerPort risks. However, the jury was deadlocked on whether the port catheter was defectively designed.

On June 3, Cook filed a motion for a mistrial (PDF), seeking a new trial and a judgment as a matter of law. The motion argues that the defense verdict and deadlocked jury were due to faulty instructions.

“Plaintiff seeks a new trial on all four claims because the Court coerced a verdict by instructing the jury that unanimity was not required and failing to correct the jury’s misimpression that deliberations had a deadline. Moreover, the instruction permitting a partial verdict was premature and legally incorrect.”

– Robert Cook v. Becton, Dickinson and Company et al., Motion for mistrial

The motion points out that the jury was told that the trial would end by May 8, pressuring them to turn over a verdict. It also notes that Cook’s attorneys objected to the instructions on design defect, failure to warn or instruct, and superseding cause.

Cook notes the jury deliberated for only 11 hours, turning in a partial verdict. During deliberations, the jury had to repeatedly ask for clarification on those same issues, which the motion claims supports the claim the instructions were inadequate.

Port Catheter Lawsuit Bellwether Trials

Currently, the second Bard PowerPort lawsuit bellwether trial is scheduled to begin on August 18, involving claims by Kimberly Divelbliss. Additional trials are scheduled to begin on October 13, December 1, and February 2, 2027.

Additionally, more than 300 similar Angiodynamics port catheter lawsuits claim that the company’s series of port catheters, including the SmartPort, Vortex Port and Xcela Port, suffer from the same design problems. These claims are consolidated in a separate MDL before U.S. Judge Jinsook Ohta in the Southern District of California, where she is also expected to begin a bellwether process.

In both litigations, if the bellwether trials and pretrial proceedings end without a settlement agreement or other resolution, the judges would likely begin remanding the cases back to their originating districts for individual trial dates.

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