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Bard’s Mid-Trial Motion Was a Preemptive Measure That Failed and Should Have

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

In the middle of the Bard hernia mesh bellwether trial, lawyers for the medical device manufacturer introduced a motion that would have excluded crucial evidence that demonstrated the company’s callous attitude toward consumer safety.  Judge Edmund A. Sargus, Jr. declined the motion as a matter of law.

C.R. Bard currently faces more than 8,000 product liability lawsuits brought throughout the federal court system, which are currently centralized before U.S. District Judge Edmund A. Sargus, Jr. in the Southern District of Ohio, as part of an MDL, or multidistrict litigatiion.

Each of the claims raise similar allegations, indicating that the company sold unreasonably dangerous and defective polypropylene hernia repair products, including Bard Ventralex, Bard Ventralight, Bard Perfix, Bard 3DMax and other mesh systems, which may fail and result in the need for risky surgery to remove the mesh.

This bellwether trial, like the others that are scheduled, are intended to gauge a jury’s reaction to testimony about the safety and efficacy of C.R. Bard’s mesh products.

In an order issued on September 2, the Court rejected that motion, clearing the trial to continue this week with the remainder of the defense’s case.

“Plaintiff has presented evidence of fraud such that a reasonable jury could conclude by clear and convincing evidence that Defendants’ conduct was intentionally fraudulent,” Judge Sargus wrote. “Days of testimony have been devoted to the lack of data Defendants had to substantiate their 30-day claim, to Defendants’ knowledge of this lack of scientific support, and to the fact that Defendants proceeded with the 30-day claim. The same evidence also would permit a reasonable jury to conclude that there is clear and convincing evidence that Defendants’ conduct manifested a knowing and reckless indifference toward, and a disregard of, the rights of others.”

The next bellwether mesh trial is scheduled for January 10, 2022, involving another Bard product, the Ventralex patch.

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