Nearly 14,000 cases are pending in In Re. C.R. Bard/ Davol, Polypropylene Hernia Mesh Products Liability Litigation (Bard MDL). Many more are waiting to go to trial in Rhode Island state court. While the Johns verdict has no precedential value for the lawsuits waiting in the wings, the loss is important because of the impact it may have on settlement negotiations.
So, now the litigation postmortem begins. Plaintiff’s attorneys had expressed optimism about Johns up to the end, using phrases like “Looking for a home run.” Now the commentary sounds more like “crushing blow”.
What went wrong?
Botched hernia repair
Johns had a Bard Ventralight ST hernia mesh patch surgically implanted to repair an abdominal hernia in 2015. He thereafter suffered from persistent and severe pain. A year after the initial surgery, Johns underwent another operation to remove the mesh patch. In 2019, he needed yet a third surgery to repair a recurring hernia in the same area where, four years earlier, the Ventralight patch was first implanted.
Johns claims that the "ST" coating, which is designed to reabsorb after a set period, did not last as long as Bard advertised. He filed his hernia patch lawsuit against C.R. Bard in 2019 asserting that, among other things, Bard knew that its mesh patches were defectively designed in a way that made the patch more likely to attach to the bowel tissue underneath, thereby causing damage and pain. Nonetheless, Bard continued to market the patches without any warnings. The legal claims arising from these facts sound in negligence, strict liability and contract law. Johns’ lawsuit was ultimately consolidated into the Bard MDL.
The Bard MDL covers the following polypropylene mesh devices:
- 3D Max
- 3D Max Lite
- Composix E/X
- Composix L/P
- Kugel Patch
- Marlex (AKA Flat Mesh; Bard Mesh)
- Perfix Plug
- Perfix Light Plug
- Pre-shaped Mesh
- Ventralex ST
- Ventrio ST
- chronic inflammation
- bowel obstructions and perforations
- nerve damage
- injuries from tearing, migration or folding of mesh
The purpose of an MDL is to streamline the pretrial process when many individual cases arise from the same or similar sets of facts. After the pretrial process is complete, a small set of individual or bellwether, cases go to trial. The bellwether cases essentially serve as a test of the strength of the plaintiffs’ arguments.
Which cases get the “bellwether treatment” is hotly negotiated between the attorneys for the plaintiffs and those for the defense. Defense attorneys want to see the weakest cases go to trial. Plaintiffs’ attorneys angle for the stronger ones.
Putting on a brave face
As with much mass medical litigation, a great deal of the pretrial motion practice concerns the relevance and reliability of the expert testimony offered by either side. These lawsuits become, essentially, a battle of the experts. A plaintiff’s lawsuit can be greatly weakened if a jury is not allowed to hear and consider the evidence proffered by the plaintiff’s chosen expert. In Johns, this may also have been a factor.
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Initial estimates were that the average settlement payout for Bard hernia mesh plaintiffs would likely be in the $80,000 – range. Some lawyers suggest that there is no reason to suppose that the Johns verdict will affect this. In any event, the next Bard MDL bellwether is now scheduled to begin in January 2022. We may have a better idea then.