Statute of Limitations Bars IVC Filter Lawsuit, Result in Reshuffling of Bard Bellwether Trials

After a motion for summary judgment was granted in an upcoming Bard IVC filter case set for trial to begin in September, finding that the lawsuit was filed after the statute of limitations had expired, the U.S. District Judge presiding over the litigation has reshuffled the order for a series of upcoming trial dates set to begin over the next few months.

There are currently more than 3,500 Bard IVC filter lawsuits pending in the federal court system, each raising similar allegations that retrievable blood clot filters sold by C.R. Bard were defectively designed and prone to fail. The devices have been linked to devastating injuries after they moved out of position, punctured internal organs or fracture, causing small pieces to travel throughout the body.

A series of early “bellwether” trials are currently underway, involving individual trial dates designed to gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

In March 2018, the first bellwether trial resulted in a $3.6 million verdict, which was recently upheld during post-trial motions. However, Bard prevailed in a second trial last month, which ended in a defense verdict.

The next case was scheduled to go to trial in September, involving a complaint filed by Carol Kruse. However, in an order issued July 12, the U.S. District Judge presiding over the litigation announced that Bard’s motion for summary judgment is being granted, finding that Nebraska law bars the plaintiff from pursuing a recovery, since the lawsuit was not filed prior to the applicable statute of limitations. A full opinion is expected within the next few weeks, but the Court has indicated that the scheduled bellwether trial dates will move forward.

In a case management order (PDF) issued on July 13, the Court indicated that the Kruse’s case will be replaced by a claim brought on by Mark Hyde, which was originally expected to begin in November.

Jury selections are now slated to begin in that case on September 18, 2018. Bard has filed a motion for summary judgment in the Hyde case as well, challenging a choice of law issue, which the Court indicates will be addressed in a ruling on July 25.

Additional trial dates slated to begin on November 5, 2018 and February 11, 2019 will continue, involving the cases originally set to go before a jury in February or May 2019. The exact order of those cases will be determined after the parties file briefing on the matter.

After trial of the Hyde case, the Court indicates it will determine whether a sixth bellwether trial in May 2019 should be held, and determine the specific plaintiff who will go before a jury at that time.

While the outcome of these bellwether trials are not be binding of remaining claims in the litigation, they are being closely watched by parties involved, and may influence eventual negotiations to reach IVC filter settlements, which would avoid the need for thousands of separate trials to be held nationwide.

In addition to cases against Bard, another 3,750 Cook IVC filter lawsuits are centralized as part of a separate MDL, involving similar allegations of design defects. Last month, a Texas jury awarded $1.2 million in damages to a firefighter who suffered injuries from a Cook Celect filter.