Bard Argues Hernia Mesh Lawsuits Previously Selected for Bellwether Trials Are No Longer “Representative”

Manufacturer argues plaintiffs in both remaining bellwether Bard hernia mesh lawsuits have seen their injuries progress to the point that they do not represent most of the litigation.

C.R. Bard is asking a federal judge to select two new hernia mesh lawsuits for early bellwether trials set to begin later this year, arguing that the claims are no longer representative of thousands of other lawsuits awaiting trial, since the previously selected plaintiffs’ conditions have worsened and new complications have developed.

The medical device manufacturer faces more than 18,000 Bard hernia mesh lawsuits brought throughout the federal court system, which are consolidated before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, as part of a federal multidistrict litigation (MDL), since they each involve similar questions of fact and law.

While each individual plaintiffs’ injury is different, they all experienced problems with different polypropylene mesh products sold by C.R. Bard in recent years, including Bard Ventralight, Bard Ventralex, Bard 3DMax, Bard PerFix Plug, and other similar systems, alleging that the manufacturer failed to disclose known design defects that increased the risk of painful hernia mesh complications.

As part of the coordinated pretrial proceedings in the Bard hernia mesh MDL, which was first established nearly five years ago in August 2018, Judge Sargus ordered that a small group of representative cases be prepared for early trial dates, known as bellwether cases, which are designed to help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

The Court has already presided over two MDL bellwether trials, which ended with mixed results. The first case went before a jury in August 2021, resulting in a defense verdict for Bard. That trial was followed by a second bellwether case that went before a jury in April 2022, resulting in a $255,000 verdict.

Two additional claims were previously selected for a third and fourth bellwether trial, including a Bard PerFix Plug lawsuit filed by Robert Stinson, Jr., which is now scheduled to go before a jury in October 2023, and a Bard 3DMax lawsuit filed by Jacob Bryan, which may go to trial in January 2024.

Bard Claims Bellwether Cases No Longer Representative of Litigation

Following a case management conference held on May 17, 2023, at which time Bard raised concerns about developments in the Stinson and Bryan claims, Judge Sargus issued an order (PDF) calling for the manufacturer to submit briefing on their position regarding the “representativeness” for purposes of serving as the third and fourth bellwether trials.

In response, C. R. Bard filed a 19-page brief (PDF) on May 24, arguing that the two cases selected for the bellwether claims are no longer appropriate for trial, since they do not represent the larger body of cases filed. In both instances, Bard acknowledges that the cases are no longer representative because plaintiffs’ injuries have worsened significantly while awaiting a trial during litigation delays and ongoing Bard hernia mesh lawsuit settlement negotations. Their original claims were for pain, but both cases indicate the injuries are now far beyond that.

In the Stinson case, Bard indicates that the plaintiff has since had to undergo another revision surgery involving a different Bard hernia mesh product, resulting in severe injuries, including the loss of a testicle.

“As the case now stands, Mr. Stinson has had three surgeries involving two different Bard hernia mesh products and is claiming injuries of not only chronic pain, but also the loss of his testicle and spermatic cord,” the brief notes. “Further, there is no indication at this early post-operative stage that Mr. Stinson’s most recent surgery will alleviate his chronic pain, since one of the procedures he did not have was a neurectomy.”

Bard claims this means the case can no longer provide useful information about how juries will respond to evidence in a large number of other claims, making it inappropriate as a bellwether test case.

However, plaintiffs filed a response (PDF) on May 30, noting that Bard has tried to remove the Stinson case from the bellwether process in the past, without success, because they do not want his claim to go before a jury. The Court has rejected those prior efforts, and plaintiffs argue that this the latest attempt is a “Hail Mary” pass to avoid defending the claim at trial.

Bard also makes very similar arguments regarding the lack of representativeness for the Bryan case to serve as the fourth bellwether case, which could potentially leave the Court without any prepared claims to go before a jury later this year.

The brief argues that Bryan’s case has also becoming more complex, due to the plaintiffs’ progressively worsening injuries. Bryan may require additional surgeries, which could also involve the removal of a testicle. The company claims it will likely take several months to determine the extent of Bryan’s actual injuries, which could make it difficult to meet the current January 2024 trial date, even if the Court decides to keep it as a bellwether selection.

Plaintiffs noted that defendants selected the Bryan case as one of their bellwether trial selections, even though the plaintiff had already informed them he was experiencing ongoing complications from the 3DMax, including testicular pain.

“It is respectfully submitted that the Court must not countenance any further of Defendants’ repeated attempts to attack the representativeness of the bellwether cases,” the plaintiffs’ response states. “Not only are the cases at issue representative and will inform the Court and the parties on how to best assign values to a multitude of cases currently pending in this MDL but all parties and the Court have expended enormous amounts of time and resources on working these cases up for trial.”

Bard filed a reply (PDF) to plaintiffs on June 1, saying its challenge of the representativeness of the two cases is based solely on recent developments.

The next case management conference is scheduled for June 13.

While the outcome of any remaining bellwether trials will not have any binding impact on other plaintiffs in the litigation, the cases are being closely watched and may influence the average Bard hernia mesh settlement amounts the manufacturer may offer to avoid the need for thousands of individual claims to go to trial nationwide in coming years.