Hernia Mesh Case Cleared For First Bellwether Trial Involving Lawsuit Over Bard Ventralight ST, Including Punitive Damages

The U.S. District Judge presiding over all federal hernia mesh lawsuits filed against C.R. Bard has determined that the first bellwether case can proceed to trial, after denying the manufacturers motion for summary judgment and attempt to prevent the jury from awarding punitive damages over problems with the Ventralight ST product.

C.R. Bard currently faces more than 8,000 product liability claims brought throughout the federal court system, each involving similar claims that defective polypropylene mesh products were sold in recent years, including Bard Ventralight, Bard Ventralex, Bard Perfix, Bard 3DMax and other similar mesh systems.

Plaintiffs allege the design problems with the polypropylene mesh caused severe abdominal pain, infections, adhesions, erosion and other complications often resulting in the need for additional surgery to remove the failed hernia patch.

Given common questions of fact and law raised in the complaints, the federal litigation has been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio for the past few years, where the parties have engaged in coordinated discovery in preparation for a series of early trial dates, which are intended to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

A Bard hernia mesh case filed by Steven Johns has been selected for the first “bellwether” trial, involving allegations that he suffered painful and debilitating complications from Ventralight mesh that featured a biorsorbable coating called Sepra Technology (“ST”), which covered the polypropylene mesh material.

With the trial set to begin in January 2021, C.R. Bard made last ditch attempts to have the case dismissed, with several motions for summary judgment and requests that the court exclude crucial expert testimony in support of the plaintiffs claim. However, Judge Sargus denied most of the company’s requests, clearing the way for the case to go before a jury.

In an evidentiary motions order (PDF) issued on September 1, Judge Sargas rejected Bard’s attempt to completely exclude plaintiff’s expert witnesses from testifying at trial, determining that several of the opinions offered are based on sufficiently sound science for the jury to consider.

In a separate dispositive motions order (PDF) issued the same day, the Court did grant the manufacturers motions for summary judgment regarding manufacturing defect claims and allegations under the Consumer Sales Practices Act. Judge Sargas also determined that claims related to a subsequent recurrent hernia, and resulting injuries and treatment, could not be pursued. However, the plaintiff is still able to proceed with the bulk his claims, including those related to design defects, failure to warn, negligent misrepresentation, breach of implied and express warranty, as well as punitive damages.

Bard attempted to prevent the jury from considering punitive damages, which may substantially increase the amount of any award, since they are intended to punish bad behavior by defendants and deter similar conduct in the future. However, Judge Sargas has determined the evidence in this case may warrant such punitive damages.

“[A]t this juncture, Plaintiff has presented sufficient evidence to establish genuine issues of fact exist as to whether Bard’s ‘intentionally fraudulent conduct’ or displayed ‘knowing and reckless indifference,’” according to the order. “Specifically, there are genuine issues of fact as to whether Bard misrepresented or concealed information regarding the timing of the resorption of the ST and the substantial risks associated with such early resorption — such as the exposure of bare polypropylene to the visceral organs — that could lead a jury to conclude they acted willfully or recklessly.”

While the Johns trial was previously expected to begin in May, when the COVID-19 pandemic emerged in the United States, the start of that bellwether case was postponed until September 29, 2020. However, following a recent status conference, the parties and Court agreed it is necessary to delay the trial date again, and it is now expected to begin in January 2021.

While the outcome of this case will not be binding on other Bard cases, it may have a substantial impact on any hernia mesh settlements Bard may offer to avoid thousands of individual trials being set for trial nationwide in the coming years.