Bard PowerPort Bellwether Trial Process on Time

Santa Clara, CAU.S. District Judge David G. Campbell has said that the Bard PowerPort lawsuit selections will go ahead as scheduled, despite the manufacturer arguing to delay the bellwether process. Judge Campbell is presiding over all Bard PowerPort fracture and migration lawsuits filed in federal courts nationwide.

The defendants, C.R. Bard and its Becton Dickinson parent company, argued that an insufficient number of lawsuits have been filed to select representative claims to prepare for early trial dates.

According to a fourth Case Management Conference on March 1, 2024, the parties submitted a joint report before the Case Management Conference that included a substantial discussion of the current size of this MDL, concerns by Defendants that proposed discovery will be disproportionate if the MDL does not grow as plaintiffs have predicted, and various discovery issues on which the parties have been conferring. Defendants were also concerned that the bellwether process, which was slated to begin on April 1, 2024 will be based on an insufficient sampling of the MDL cases if the MDL does grow as Plaintiffs have predicted. (This MDL currently includes about 115 cases but plaintiffs predicted in previous conferences that the MDL will grow to several thousand cases and during the recent conference they still believe that many new cases are being processed for filing.)

After reviewing the parties’ joint report, reviewing statistics from the IVC Filter MDL previously handled by this Court (see below) and hearing extended comments from the parties, the Court concluded that current discovery expectations should not be changed and the bellwether process should proceed as scheduled.

Judge Campbell and Previous Bard Litigation

Because so many Bard PowerPort lawsuits have been filed throughout various different federal courts, the U.S. Judicial Panel on Multidistrict Litigation (JPML) issued a transfer order in August 2023, ordering all the Bard chemo port lawsuits to be centralized before one judge for pretrial proceedings. The JPML selected the District of Arizona with Judge Campbell who previously presided over MDL No. 2641 – In re Bard IVC Filters Products Liability Litigation, involving a different medical device manufactured by Bard. The panel said that Judge Campbell “ably handled that litigation” and they are “confident that he will steer this litigation on a prudent course.”

The Bard IVC filter lawsuit MDL was established in August 2015 and included more than 8,300 claims before the cases were resolved. At the time of the case selections process, there were 407 cases for parties to select bellwether cases from. Judge Campbell said, ”The filter MDL grew slowly at first and faster in later years, with 81% of the cases being filed more than 18 months after the MDL began…In light of the relevant experience, the Court cannot conclude that the current case count in this MDL suggests it will be significantly smaller than Plaintiffs have predicted.”

As of last month, about 115 product liability lawsuits allege that Bard PowerPort users developed devastating infections, blood clots and other complications after the ports were implanted. “While 407 cases certainly constitute a more representative sample than 115, they still represented less than 5% of the eventual total case count in the filter litigation,” Judge Campbell stated, and reported by AboutLawsuits.com. “The 115 cases pending in this MDL would be a significantly smaller sample size than in the filter MDL, but Plaintiffs predicted during the conference that significant additional filings will happen in the coming weeks, increasing the pool for bellwether selection.”

Bellwether Trials

Judge Campbell’s bellwether trial process comprises a group of 24 initial Bard PowerPort lawsuits that will go through discovery and be ready for a series of early trial dates. The parties have been directed to submit the list of bellwether cases by July 1, 2024, selecting from any lawsuits filed by April 1, 2024.