Judge Pushes Global Bard Hernia Settlement Discussions Before Considering Remand, After Cancelling Fourth Bellwether Trial

Final Bard hernia mesh bellwether trial set to begin in April 2024 has been cancelled, as the MDL judge calls for 3-4 months of global settlement negotiations before remanding claims to U.S. District Courts nationwide.

The U.S. District Judge presiding over all Bard hernia mesh lawsuits has cancelled the fourth and final bellwether trial, indicating that the parties have had enough cases go before juries to reach a settlement agreement. However, the Court is calling for several months of negotiations before considering any plan to start sending cases back to their originating district for trial.

Nearly 21,000 product liability lawsuits have been filed against C.R. Bard throughout the federal court system, each involving similar allegations that users suffered painful and debilitating injuries caused by design defects associated with various polypropylene products sold in recent years, including the Bard Ventralight, Bard Ventralex, Bard Perfix Plug, Bard 3DMax, and other similar systems.

Since each of the claims raise similar questions of fact and law, the hernia mesh lawsuits have been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio since August 2018, as part of a federal Bard hernia mesh MDL, where the parties have already held three test trials to help determine how juries may respond to certain evidence and testimony that may be repeated throughout the claims.

Although the bellwether trials were designed to promote resolution of the litigation, large numbers of Bard hernia mesh settlements have not materialized, and thousands of individuals are still awaiting their day in court.

Judge Sargus presided over the first Bard hernia mesh trial in August 2021, which resulted in a  defense verdict for Bard. However, a second bellwether trial followed in April 2022, resulting in a $255,000 verdict, and the third resulted in a $500,000 verdict in November 2023.

In August 2022, a state court lawsuit in Rhode Island ended with a $4.8 million verdict over Bard Ventralex mesh problems, which sent a strong signal to the manufacturer about the extent of liability it may face if each of the remaining cases goes before a jury.

Fourth Bard Hernia Mesh Bellwether Trial Vacated

Originally, a fourth and final Bard hernia mesh bellwether trial was scheduled to begin in April 2024, involving a claim filed by Jacob Bryan, of Florida, over complications linked to the Bard 3DMax. However, in a case management order (PDF) issued on February 1, Judge Sargus announced he was vacating the trial date, deeming it unnecessary.

“The Court has spent a total of 56 days in trial and has issued more than 100 opinions on dispositive motions and evidentiary issues in bellwether cases,” he wrote. “The usefulness of another lengthy and expensive trial is dubious at best.”

Judge Sargus indicated he saw very little value in proceeding with the trial, as the parties have and not only the bellwether trials in this litigation to consider, but noted that other juries have returned verdicts in very similar hernia mesh lawsuits in other multidistrict litigations as well

Global Bard Hernia Mesh Settlement Will Be Focus in Coming Months

In December, the Plaintiffs Steering Committee filed a motion calling for the court to start planning the remand of Bard hernia mesh lawsuits back to the U.S. District Courts where they originated for individual trials, also believing that the bellwether trials had run their course.

The plaintiffs argued that the pretrial proceedings in the MDL had been essentially completed, and asked Judge Sargus to identify a group of 1,500 cases, representing approximately 7.5% of all cases filed in the MDL, returning them to U.S. District Courts nationwide so lawyers could begin preparing large numbers of them for trial.

Bard indicated earlier this month that it opposed that motion, calling it premature.

While Judge Sargus agreed that there was no need for further bellwether trials, he also rejected the plaintiffs’ calls for the remand process to begin right away, saying the parties should take more time to negotiate in an effort to reach a global settlement before swamping federal courts with hundreds of hernia mesh trials.

He noted that the Court has mentioned previously that it would like to see a three- or four-month period after the last bellwether trial for negotiations and mediation between the parties in hopes of reaching a settlement.

“As the Court indicated, the goal in this case is to reach a global settlement, and if that cannot be accomplished, to later begin discussing what the remand process would look like,” Judge Sargus wrote. “There has been no discussion between the parties and the Court regarding any plan other than global settlement or potential remand of all remaining cases, let alone discussions of a massive undertaking along the lines of the plan proposed by the PSC.”

With the cancellation of the fourth bellwether trial, the last trial to be held at the federal level was in November 2023. The order did not set forth parameters for specific global hernia mesh settlement negotiations.