Schedule To Prepare Bard PowerPort Lawsuits for Bellwether Trials To Be Proposed by Parties

Joint plans for preparing the first Bard PowerPort lawsuits for bellwether trials must be submitted by March 18.

The U.S. District Judge presiding over all federal Bard PowerPort lawsuits wants lawyers involved in the case to submit a joint proposal next month, which will detail plans for getting the first early “bellwether” test cases ready for trial, which will help determine how juries may respond to certain allegations that will be repeated throughout the litigation.

C.R. Bard and its parent company, Becton Dickinson & Company, currently face more than 1,000 product liability lawsuits over problems with its PowerPort port catheter products, which are totally implantable vascular access devices (TIVADs) used to deliver chemotherapy and other medications directly into a patient’s bloodstream. It includes an injection port site, where the needle is inserted, and a polyurethane catheter tube that delivers the fluids into the body.

However, each lawsuit raises similar allegations that the implants are prone to degrade and fracture inside the body, often leading to severe and life-threatening port catheter fractures or port catheter infections, which may result in the need for revision surgery to remove the failed device.

Since August 2023, claims brought throughout the federal court system have been centralized and consolidated into a Bard PowerPort lawsuit MDL, or multidistrict litigation, with U.S. District Judge David G. Campbell presiding over coordinated discovery and pretrial proceedings in the District of Arizona.

To help the parties evaluate the relative strengths and weaknesses of their claims, and evaluate how juries may respond to certain evidence and testimony that will be repeated throughout the lawsuits, Judge Campbell has indicated that a series of early bellwether test trials will be held in the MDL.

This process began with the selection of a group of 24 Bard PowerPort bellwether cases in December 2023, which have been going through case-specific discovery over the past year. Then, late last year Bard PowerPort lawyers narrowed that list to 15 claims that are eligible for trial, which are now going through the next phase of discovery.

The Court previously indicated that all discovery must be completed in those claims by January 31, 2025, with a final group of six potential trial picks selected by early March 2025. However, Judge Campbell recently agreed to extend deadlines, giving the parties until mid-April 2025 to choose their final Bard PowerPort trial cases.

If the parties are unable to agree on the selections, they have each been directed to file a proposal with the court by April 14, 2025, together with a memorandum explaining their selections and why they oppose the cases proposed by the other side. Judge Campbell will then decide the final “Bellwether Group 1” claims, which will go through final trial preparations.

In a follow-up case management order (PDF) issued on February 24, Judge Campbell announced he will hold a case management conference on March 20, and has ordered the parties to file a joint memorandum at least two days before the meeting, detailing their proposed schedule for bellwether-specific discovery, motions to exclude expert witnesses from testifying at trial and motions for summary judgment.

The order came after a case management conference held on February 20, which also included discussions on potential replacement cases for the discovery pool, updates on depositions, and the completion of Plaintiff Profile Forms.

While 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, which will be necessary to avoid hundreds of individual claims being set for trial in the coming years.