C.R. Bard is requesting that a federal judge choose two new hernia mesh lawsuits for early bellwether trials that are scheduled to start later this year.
The company claims that the claims are no longer representative of the thousands of other lawsuits that are still pending trial because the conditions of the previously chosen plaintiffs have gotten worse and new complications have emerged.
The judge overseeing the lawsuits issued an order requesting that the manufacturer submit a briefing on their position regarding the "representativeness" for the purposes of serving as the third and fourth bellwether trials following a case management conference held on May 17, 2023, during which Bard raised concerns about developments in the claims.
On May 24, C. R. Bard responded with a 19-page brief in which he claimed that the two instances chosen as bellwether claims were no longer acceptable for trial since they no longer accurately represented the majority of cases submitted. Due to the plaintiffs' disabilities having dramatically deteriorated while waiting for a trial due to legal delays and current Bard hernia mesh lawsuit settlement negotiations, Bard admits that both cases are no longer representative. Their first complaints were for discomfort, but both examples show that the injuries have already progressed significantly.
The plaintiff reportedly suffered significant injuries, including the loss of a testicle, as a result of a subsequent revision operation employing a different Bard hernia mesh device, according to Bard.
Bard asserts this makes the case unfit as a bellwether test case since it can no longer give helpful information about how jurors will react to evidence in a variety of other claims.
Plaintiffs, on the other hand, submitted a statement on May 30 and noted that Bard had previously attempted to have the case removed from the bellwether process, unsuccessfully, because they did not want his claim to be heard by a jury. Plaintiffs contend that this most recent effort is a way out of having to defend the claim at trial after the Court rejected those earlier attempts.
Bard makes very similar arguments on the fourth bellwether case's lack of representativeness, which may leave the Court without any ready claims to present to a jury later this year.
Although the plaintiff had already told the defendants that he was dealing with continuing side effects from the 3DMax, including testicular discomfort, they chose the case as one of their bellwether trials, according to the plaintiffs.
On June 1, Bard submitted a response to the plaintiffs in which it claimed that the plaintiffs' objection to the representativeness of the two instances was purely based on recent events.