First Bard Hernia Mesh Bellwether Trial Continues in Federal Court

A jury continues to hear evidence and testimony about design problems with hernia mesh sold by C.R. Bard, as the first federal bellwether trial nears the end of its third week.

Parties involved in more than 8,000 similar hernia mesh lawsuits pending throughout the federal court system are closely watching the trial, which may help gauge how juries are likely to respond to claims that may be repeated throughout future trials over different polypropylene hernia repair products sold in recent years, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems that each feature similar designs.

Given common questions of fact and law raised in the complaints filed in U.S. District Courts nationwide, the federal Bard hernia mesh litigation has been centralized as part of an MDL before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, where the parties have engaged in coordinated discovery and prepared a series of cases for early trials, which were delayed several times amid the on-going COVID-19 pandemic.

A case filed by Steven Johns was selected for the first Bard hernia mesh bellwether trial, which began on August 2nd. While the outcome of this lawsuit will not have any binding effect on other plaintiffs, it may have a big impact on hernia mesh settlement negotiations to resolve thousands of other claims.

Johns alleges he experienced adhesions and other health problems after a Bard Ventralight ST mesh was implanted. Due to failure of the hernia patch, Johns claims he suffered painful complications and required additional surgery to remove the product from his body.

The trial is expected to last five weeks and two days, involving both in-person and video testimony from nearly two dozen fact and expert witnesses. The trial is currently focused on plaintiffs’ expert witnesses and testimony.

In a trial brief (PDF) filed August 17, Bard moved to have some plaintiff’s expert testimony barred from the trial, arguing that testimony related to alleged design control problems were unrelated to Johns’ problems with its Ventralight ST mesh. However, plaintiffs submitted a response brief yesterday, outlining the evidence related to the manufacturer’s design control problems and the connection to the adhesions suffered by Johns.

“The matter is far more simple than Defendants make it out to be: but for Defendants’ design control deficiencies related to the proper identification, documentation, and validation of User Needs (of which they were on notice no later than 2006), the Ventralight ST never would have been validated in a … design control system, the product would or should not have been launched, and Mr. Johns never would have been implanted with the Ventralight ST which resulted in his adhesions,” according to the plaintiff’s filing.

Following the conclusion of this hernia mesh trial, Judge Sargus has scheduled a second bellwether trial to begin on January 10, 2021, involving complications with Bard Ventralex patch. The Court indicates that it will outline specific deadlines in advance of that trial over the coming weeks. In addition, if hernia mesh settlements are not reached to resolve claims, two additional bellwether trials are anticipated next year, but have not yet been scheduled.

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