Bard Hernia Mesh Lawsuits – MDL 2846
The company C.R. Bard and its subsidiary Davol are the largest hernia mesh manufacturers in the world. Bard sells over 60% of the hernia mesh devices utilized in the United States. In 2017, shortly after hernia mesh lawsuits started being filed, Bard was acquired by Becton Dickinson for $24 billion. Bard makes dozens of unique hernia mesh devices, including fully resorbable hernia meshes. The vast majority of Bard’s hernia meshes are made from a cheap plastic known as polypropylene. The Bard hernia mesh lawsuits are related to the polypropylene hernia meshes that Bard makes. Bard is located in and makes some of its hernia mesh devices in Rhode Island. Bard is subject to 10’s of thousands of hernia mesh lawsuits in both state court and federal court.
Bard Hernia Mesh Updates:
July 2024 – Docket Control Order & Settlement?
Increased Requirements to File a Bard Hernia Mesh Lawsuit
On Saturday, July 6, 2024, the Court entered case management order #52, titled Docket Control Order. This docket control order, also frequently called a lone pine order, will make it significantly harder to file Bard hernia mesh lawsuits in MDL 2846 going forward.
First, for any Bard hernia mesh lawsuit filed in MDL 2846 going forward, within 14 days of filing the lawsuit, the Plaintiff’s hernia mesh attorney must provide a list of all relevant pharmacies, physicians, medical facilities, and other healthcare providers related to the implantation of the Bard hernia mesh product or subsequent treatment due to the Bard hernia mesh product. Then, within 21 days after serving the Plaintiff’s lawsuit, Counsel for Plaintiff must certify under the penalty of perjury that:
- The claims are not time barred by the applicable statutes of limitations and/or statues of repose;
- The claims are not the subject of an earlier filed and currently pending case;
- The claims set forth in the operative complaint have not been settled or released previously, including through a pending or concluded bankruptcy proceeding;
- If the case involved a survivorship or wrongful death claim, that the proper party has been substituted and has the legal right to proceed on behalf of Plaintiff’s decedent.
Then if the Plaintiff’s Bard Hernia Mesh lawsuit is later dismissed due to the claims being time-barred, Bard may be entitled to cost and fees from the certifying counsel and/or Plaintiff, at the discretion of the Court.
Next, for newly filed Bard hernia mesh lawsuits, counsel must also produce a Plaintiff Fact Sheet (“PFS”), authorizations for Bard to obtain medical records, and all medical records relating to the Plaintiff from all healthcare providers who received notice of the lawsuit, which must include product identification, implant and explant records, and any records relating to one or more Bard Hernia Mesh Products, the claims or injuries, and an affidavit signed by the Plaintiff’s attorney attesting that all medical records have been collected and produced.
The largest hurdle for any newly filed Bard hernia mesh lawsuit in MDL 2846 is that a case-specific expert report concerning the specific causation of Plaintiff’s injury must be produced within 90 days of serving the Plaintiff’s lawsuit. The Court noted that the case-specific expert report “should identify the Plaintiff’s implant with one or more Bard Hernia Mesh Products, the reasons for the implant(s), and the nature of the Plaintiff’s alleged injury, along with the details of any medical exams, testing, diagnosis or treatment relied upon to support any claimed injury; a statement that the expert believes to the appropriate degree of medical certainty that a bard Hernia Mesh Product caused Plaintiff’s alleged injury, along with a description of all facts, medical and scientific literature or other authorities relied upon by the expert to support such opinion; and the medical records relied upon in forming the expert’s opinion. The signed case-specific expert report must be on behalf of a physician who holds a current medical license in one or more states or territories in the United States.” Then, within 45 days of the expert report being served, Defendants have the option to request the deposition of the Plaintiff within no more than 60 days of the deposition request.
MDL 2846 Stayed Pending A Master Settlement Agreement?
The Court also entered case management order #52 on Saturday, July 6, 2024, contemporaneously with CMO 53 (discussed above). CMO 52 puts a limited stay on all Bard hernia mesh lawsuits in MDL 2846 on or before July 6, 2024. The Court noted that “during the pendency of this limited stay, the parties may not take any discovery, file any motion, or seek any relief, pretrial, or trial setting, or remand”. The limited stay also obviates the need for the parties to serve Plaintiff Profile Forms (PPFs) or Defense Profile Forms (DFS) on cases already on file. The Court also noted that it “anticipates that the stay will be lifted in cases in which the plaintiffs opt out of the Master Settlement Agreement.”
Of importance – THERE IS NOT A BARD HERNIA MESH MASTER SETTLEMENT AGREEMENT AT THIS TIME. Nigh Goldenberg Raso & Vaughn clients will be notified via confidential communications if and when a Bard hernia mesh settlement is reached. We ask for your patience as negotiations for the Bard hernia mesh settlement continue.
May 2024 – Bard Hernia Mesh Settlement?
Nigh Goldenberg Raso & Vaughn have received numerous inquiries from clients and attorneys nationwide regarding a motion to seal an agreed motion to establish a qualified settlement fund, to appoint settlement claims administrator, and to issue related relief. Many attorneys and clients wrongly assumed a Bard hernia mesh global settlement had been achieved because the filing notes that “Bard entered into a confidential Master Settlement agreement.” However, this Bard Hernia Mesh settlement was entered into some time ago and does not apply to the entire Bard hernia mesh litigation. This Bard hernia mesh settlement only applies to a few hundred out of tens of thousands of Bard hernia mesh lawsuits. The per-case average in that Bard hernia mesh settlement is confidential. However, it is a common tactic in mass litigation to try and pick off “low-hanging fruit” first, or simply put – see is who willing to settle for the least amount of money.
Rhode Island Bard Hernia Mesh Lawsuits
Hernia mesh lawsuits against Bard were initially filed primarily into Rhode Island state court back in 2016. Bard is headquartered in Rhode Island, which subjects the company to hernia mesh lawsuits in Rhode Island state court, regardless of what state the Plaintiff lives in. The Bard hernia mesh lawsuits in Rhode Island state court are led by the Honorable Judge Alice Bridget Gibney. There are currently over 12,000 hernia mesh lawsuits filed against Bard in Rhode Island state court.
2022 Plaintiff Hernia Mesh Jury Verdict: Plaintiff Paul Trevino was awarded $4.8 million in compensatory damages for negligence by Bard in relation to the Ventralex hernia mesh patch. The hernia mesh trial lasted for over 1 month. Plaintiff Paul Trevino suffered gastrointestinal injuries in Hawaii from the Ventralex mesh, but was able to bring his claim in Rhode Island state court. The Ventralex mesh in this hernia mesh lawsuit was claimed to have been made from polypropylene that was not intended for permanent human implantation.
MDL 2846 – Federal Court Bard Hernia Mesh Lawsuits
Plaintiffs Move for All Hernia Mesh Lawsuits to be Consolidated
The Bard hernia mesh multi-district litigation (MDL) started after the Bard Rhode Island hernia mesh lawsuits. In 2018, hernia mesh attorneys moved to have 53 hernia mesh lawsuits in 21 different districts be centralized for pretrial proceedings under 28 U.S.C. 1407. It was noted that there were already potentially 69 additional related hernia mesh lawsuits in federal court. The hernia mesh lawyers asked for the hernia mesh lawsuits to be consolidated in either the Southern District of Ohio or the Western District of Missouri.
Federal Hernia Mesh Lawsuits Consolidated in the Southern District of Ohio
On August 6, 2018, the United States Judicial Panel on Multidistrict Litigation (JPML) found that the Bard hernia mesh lawsuits filed in federal court “involved common questions of fact, and that centralization in the Southern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct in this litigation. All of the actions share common questions arising out of allegations that defects in defendants’ polypropylene hernia mesh products can lead to complications when implanted in patients, including adhesions, damage to organs, inflammatory and allergic responses, foreign body rejection, migration of the mesh, and infections. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel, and the judiciary.” The federal Bard hernia mesh lawsuits were assigned MDL number 2846 and titled In Re: Davol, Inc / C.R. Bard, Inc. Polypropylene Hernia Mesh Products Liability Litigation. The hernia mesh actions in federal court were then transferred to the Southern District of Ohio (located in Columbus, OH) and assigned to the Honorable Edmund A. Sargus. At the time, Judge Sargus was the chief judge of the Southern District of Ohio. There are currently over 25,000 Bard hernia mesh lawsuits on file in MDL 2846
Judge Sargus Appoints Brett Vaughn to Leadership for the Bard Hernia Mesh Lawsuits
Just a little over a month after the formation of the Bard hernia mesh MDL, Judge Sargus appointed Plaintiff’s leadership for MDL 2846 via Case Management Order #3 on September 19, 2018. Six attorneys from around the United States were selected by Judge Sargus to be on the Plaintiff’s Executive Committee (PEC) over the hernia mesh litigation. One of those hernia mesh attorneys selected to the PEC was NGRV attorney and founding partner, C. Brett Vaughn RN, BSN, JD. Brett Vaughn was also appointed to be the co-chair of the science and expert committee of the Bard hernia mesh litigation. Brett Vaughn has also been part of the Bard hernia mesh trial teams. In total, 15 lawyers from 15 different law firms around the United States were appointed to the leadership of MDL 2846. The Court specifically noted that “These designations are of a personal nature”, meaning that the individual attorney is appointed to leadership, not the law firm. Therefore, the leadership position stays with the appointed attorney even if they were to change law firms. The Court also expressed that it “looks to these counsel to undertake personal responsibility to perform the designated functions and reserves the discretion to replace these counsel should they become unable or unwilling to do so.” Brett Vaughn has served as an executive committee member on Bard hernia mesh lawsuits in MDL 2846 for approximately 6 years.
Documents to be Produced Related to Hernia Mesh Lawsuits
On October 26, 2018, judge Sargus issued Case Management Order #4, related to the format of production of hardcopy documents and electronically stored information. Judge Sargus order the production of “Custodial Files”, which include “documents maintained in the Custodian’s hardcopy files; Documents maintained on the Custodian’s Davol or C.R. Bard-issued computer (desktop, laptop, or mobile device) and in the Custodian’s allocated storage space(s) on centralized sources; and emails and attachments maintained in the Custodian’s mailbox in Defendants’ Office 365 environment as well as the Custodian’s email archives.” It was also noted that a number prior polypropylene mesh litigation documents had already been produced. Bard has been producing ongoing documents related to the hernia mesh lawsuits for years.
Bellwether Hernia Mesh Trials Set
Judge Sargus initially set the bellwether trial schedule on November 20, 2018 via Case Management Order #10. Each side was ordered to simultaneously identify six representative hernia mesh lawsuit Plaintiffs as candidates for the Bellwether Discovery Cases, for a total of twelve Bard hernia mesh lawsuits to be worked up for case-specific discovery. Then, the court would review the twelve hernia mesh lawsuits to make sure that the claims were representative of a sample of the hernia mesh lawsuits currently pending the MDL 2846. After the twelve plaintiffs in the selected hernia mesh lawsuits undergo Core Discovery, a process that includes many depositions and can take around 1 year, the parties would then simultaneously identify a list of three cases for trial consideration, for a total of six hernia mesh lawsuits to be considered for trial. Finally, the court would select three of the Bellwether Trial Pool cases for bellwether trials. The first three bard hernia mesh trials were initially set for the following dates:
- May 8, 2020
- July 13, 2020
- September 14, 2020
First Bard Hernia Mesh Lawsuit Bellwether Trial Selected
On January 24, 2020, via Case Management Order #25, the Court selected Plaintiff Stephen Johns from Johns v C.R. Bard et al., Case No. 2:18-cv-01509 as the first Bellwether Trial Case to be tried in the Bard hernia mesh multidistrict litigation. The Johns case was a defense pick. Plaintiff Stephen Johns had been implanted with a Bard Ventralight ST hernia mesh. The plaintiff claimed that the absorbable adhesions barrier of the Ventralight ST was marketed to surgeons as lasting approximately 1 month, but actually lasted less than 1 week, resulting in his bowels adhering to the hernia mesh. The Ventralight ST was one of Bard’s top-selling hernia mesh devices and there had never been a hernia mesh lawsuit on the Ventralight ST go to trial before. Even though the Johns case was a defense pick, plaintiffs were excited to be able to put on the new Ventralight ST liability story.
Six Bard Hernia Mesh Bellwether Trial Pool Plaintiffs
The hernia mesh lawyers explained to the court that the six Bellwether Trial Pool Plaintiffs include four devices that can be grouped into three “buckets” of devices:
- ePTFE barrier devices
- ST barrier devices
- all polypropylene, inguinal devices
The hernia mesh attorneys from both sides agreed that the three initial bellwether trials should include a device that falls into one of the three hernia mesh buckets. The parties agreed that whichever side picked the first bellwether trial, the other side would pick the next two bellwether trials. Because the first trial would be a defense ST barrier hernia mesh pick, the plaintiffs would be permitted to pick the ePTFE bellwether and the all-polypropylene inguinal hernia mesh bellwether cases.
Covid-19 Significantly Delays Bard Hernia Mesh Lawsuits
On March 24, 2020, the court entered amended Case Management Order #23-A, noting that “due to the impact of the coronavirus (COVID-19) outbreak, this trial has been rescheduled to Monday, July 13, 2020.”
On May 5, 2020, the court entered amended Case Management Order #23-B, rescheduling the first Bard hernia mesh lawsuit bellwether trial to Tuesday, September 29, 2020.
On October 14, 2020, the court entered amended Case Management Order #23-C, tentatively rescheduling the first Bard hernia mesh bellwether trial to Thursday, January 7, 2021, due to the impact of the coronavirus outbreak.
On November 23, 2020, the court entered amended Case Management Order #23-D, tentatively rescheduling the first Bard hernia mesh trial to Monday, April 19, 2021.
On March 9, 2021, the court entered amended Case Management Order #23-E, rescheduling the first Bard hernia mesh bellwether trial to Monday, August 2, 2021.
First Bard Hernia Mesh Bellwether Goes to Trial
The first Bard hernia mesh bellwether commenced on August 2, 2021. The plaintiff was Stephen Johns and he had been implanted with a Ventralight ST hernia mesh. The hernia mesh lawsuit was selected by the defense to go to trial, which typically means that it is a weaker case and that the defense feels confident that they will win at trial. The first hernia mesh bellwether trial lasted over a month, but the jury returned a verdict in just a couple of hours. The jury found for the defense on all counts, including negligence, failure to warn, and even design defect. The defense had argued that the plaintiff wasn’t actually injured by the mesh, that instead the plaintiff had cosmetic surgery to repair a diastasis recti (bulging of the abdomen caused by thinned-out abdominal wall muscles) and during that procedure it was noticed that there were adhesions to the polypropylene portion of the hernia mesh. While adhesions were noted to and taken down from the plaintiff’s Ventralight ST hernia mesh, the defense argued that the plaintiff never actually experienced any symptoms or complications from the adhesions to his Ventralight ST implant. The jury agreed with the defendants. While the plaintiffs did not win the first bellwether trial, they felt that they put on a strong general liability story that sent a message to the defense that with the right plaintiff, they will win at trial.
Second Bard Hernia Mesh Bellwether Goes to Trial
It was decided that the second bellwether trial would be Milanesi et al. v. C.R. Bard et al, Case No. 2:18-cv-01320. The Milanesi case was selected by the plaintiffs. Plaintiff Milanesi had been implanted with and injured by a Ventralex hernia mesh with a permanent PET ring. On September 29, 2021, after the verdict in the first Bard hernia mesh bellwether trial, the court entered Case Management Order #29-A, rescheduling the second Bard hernia mesh bellwether trial to Monday, January 10, 2022, due to the continued impact of COVID-19. On January 11, 2022, via Case Management Order #29-C, the court again rescheduled the second hernia mesh lawsuit bellwether trial to Monday, March 21, 2022.
The second bard hernia mesh lawsuit bellwether trial commenced on March 21, 2022, and the trial lasted this time for less than one month, with the case going to the jury on April 14, 2022. The hernia mesh attorneys demonstrated that Bard’s Ventralex hernia mesh deformed after implantation, allowing the polypropylene side of the mesh to adhere to the plaintiff’s bowels, resulting in significant bowel complications and extended hospitalizations. This time the jury deliberated for an entire day and on April 15, 2022, the jury found for the plaintiff injured by Bard’s Ventralex hernia mesh and awarded him $255,000. The jury divided the damages as $250,000 being awarded to the plaintiff to compensate him for his injuries that resulted from Bard defectively designing the Ventralex hernia mesh, and $5,000 going to the plaintiff’s wife for her loss of consortium claim. Unfortunately, the jury did not hit Bard for punitive damages related to its conduct. While a victory on paper, it is important to note that a month-long trial and an all-star cast of expert witnesses is an expensive and time-intensive endeavor for the jury to only award $255,000 at trial. Not only must every single juror find in favor of the plaintiff, but the jury needs to award more money that it cost to take the hernia mesh lawsuit to trial.
Upcoming Third Bard Hernia Mesh Lawsuit Bellwether Trial
The third Bard hernia mesh lawsuit to go to trial is Plaintiff Aaron Stinson. Mr. Stinson was initially implanted with a PerFix Plug hernia mesh to repair an inguinal or groin hernia. The third Bard hernia mesh bellwether trial was selected by the Plaintiffs. The third hernia mesh bellwether trial was scheduled to proceed in February 2023. However, Plaintiff Aaron Stinson began to suffer additional complications from the PerFix Plug that would likely require additional treatment. Judge Sargus then initially moved the third bellwether trial to May of 2023, because he did not want the jury to speculate as to Mr. Stinson’s future damages. One benefit of the third bellwether trial date moving was that one of Plaintiff’s star expert witnesses – former head of the FDA, Dr. David Kessler – would no longer be working in the government after February 2023 (one can not be employed by the federal government and be an expert witness in a civil lawsuit at the same time). Dr. David Kessler was head of the FDA from 1990 – 1997, which includes the period of time during which Bard’s Perfix Plug came to the market. While Dr. David Kessler submitted expert reports and was deposed in the Bard hernia mesh MDL, he has been unable to be an expert at trial thus far, because he was pulled by the government as part of the COVID response team.
Unfortunately, the Plaintiff in the third Bard hernia mesh bellwether trial did require an additional removal surgery and that surgery was not able to be scheduled until early May 2023. The defense then requested in April of 2023 for the trial date of the third bellwether trial to be moved again, because the defense planned to depose all treating physicians and supplement their expert reports. The Plaintiffs strongly opposed any movement of the trial. Judge Sargus agreed with the defendants and did not think there would be time for all the additional depositions, expert reports, and necessary briefing prior to the May trial. Furthermore, the judge’s court clerk was going to be unavailable for a couple of months during the summer of 2023. As a result, the judge moved the third Bard hernia mesh bellwether trial to the middle of October 2023.
The plaintiff in the third Bard hernia mesh bellwether trial has now undergone his additional hernia mesh removal surgery. Unfortunately, the plaintiff for the third Bard hernia mesh bellwether did have additional mesh removed along with one of his testicles (orchiectomy). Plaintiffs continue to prepare and refine their case in anticipation of the October Bard hernia mesh trial. More information can be found on our PerFix Plug lawsuit page.
Fourth Bard Hernia Mesh Bellwether Trial Canceled
The fourth Bard bellwether trial was scheduled for April of 2024 (previously January of 2024). The Plaintiff, Jacob Bryan was implanted with a 3DMax hernia mesh and experienced complications including mesh deformation and chronic pain. The 3DMax hernia mesh was utilized to repair an inguinal/groin hernia. Judge Sargus decided to cancel the 4th Bard hernia mesh bellwether trial. Prior to canceling the 3DMax bellwether trial, Judge Sargus made numerous rulings that would help guide the parties going forward and in the event that the Bard hernia mesh lawsuits get remanded nationwide. Along with canceling the bellwether trial, Judge Sargus entered CMO 51 – “Mediation Scheduling Order”. The parties were ordered to begin in-person mediation in an attempt to settle the Bard hernia mesh lawsuits. Per the order, the parties have until May 24, 2024, to come to a settlement agreement or agree to extend the deadline for continued settlement discussions.
Potential Bard Hernia Mesh Settlements
Most information about hernia mesh settlement and negotiations regarding hernia mesh settlements are highly confidential and can not be discussed online. It is also important to recognize that neither the judge nor the plaintiffs can force a settlement; the defendants have to be willing to settle. It is the duty of the hernia mesh lawyers on the plaintiffs’ side to continue to put pressure on the defendants until the hernia mesh manufacturers are willing to settle for fair value. While the judge can not force a settlement, on August 17, 2022, Judge Sargus entered Case Management Order #34 titled “Order Appointing Settlement Master”. The order appointing settlement master read as follows, “Upon the parties’ joint agreement, the Court hereby appoints John Jackson as settlement master. The settlement master will facilitate discussions among and between the parties as he deems necessary, appropriate and as directed by the Court, and will provide status reports to the Court on a frequent and timely basis. The settlement master shall have the power and authority to engage in ex parte communications with all parties, counsel, and the Court.”
If there are material updates regarding the status of settlement of the Bard hernia mesh lawsuits, Nigh Goldenberg Raso & Vaughn’s hernia mesh attorneys will be reaching out to their hernia mesh clients to provide a direct and confidential settlement update.
Bard Hernia Mesh Lawsuit Attorney
If you or a loved one have been injured by Bard hernia mesh, contact our experienced hernia mesh attorneys today at 202-792-7927. Our hernia mesh lawyers have been involved with the Bard hernia mesh lawsuits since the inception of the hernia litigation. Experience matters when deciding on who to have represent you in a Bard hernia mesh lawsuit. Call us or fill out a webform for a Bard free hernia mesh lawsuit consultation.
