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Judge in Bard Hernia Mesh Trial Rules Punitive Damages May Be Sought

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

U.S. District Judge Edmund A. Sargus in the Southern District of Ohio has issued a pre-trial order that the trial jury may award punitive damages to those who have been severely injured by the defective Bard Ventralight ST hernia mesh medical device.  In his pre-trial ruling, Judge Sargus also determined that the first bellwether case can proceed to trial, after denying the manufacturers motion for summary judgment.

C.R. Bard currently faces more than 8,000 product liability claims brought throughout the federal court system, each involving similar claims that defective polypropylene mesh products were sold in recent years, including Bard Ventralight, Bard Ventralex, Bard Perfix, Bard 3DMax and other similar mesh systems.

Plaintiffs allege the design problems with the polypropylene mesh caused severe abdominal pain, infections, adhesions, erosion and other complications often resulting in the need for additional surgery to remove the failed hernia patch.

Bard attempted to prevent the jury from considering punitive damages, which may substantially increase the amount of any award, since they are intended to punish bad behavior by defendants and deter similar conduct in the future. However, Judge Sargas has determined the evidence, in this case, may warrant such punitive damages.

The judge wrote in part, “Plaintiff has presented sufficient evidence to establish genuine issues of fact exist as to whether Bard’s “intentionally fraudulent conduct” or displayed “knowing and reckless indifference.” Specifically, there are genuine issues of fact as to whether Bard misrepresented or concealed information regarding the timing of the resorption of the ST and the substantial risks associated with such early resorption—such as the exposure of bare polypropylene to the visceral organs—that could lead a jury to conclude they acted willfully or recklessly.”

At issue in this trial is what Bard knew and when they knew it.  It is our contention based upon the evidence at hand that Bard knew their product was defective because the coating on the mesh would be absorbed into the body at a much more rapid rate than what Bard promoted.  This absorption caused severe medical issues. 

A Bard hernia mesh case filed by Steven Johns has been selected for the first “bellwether” trial, involving allegations that he suffered painful and debilitating complications from Ventralight mesh that featured a biorsorbable coating called Sepra Technology (“ST”), which covered the polypropylene mesh material.

This first bellwether trial had been postponed due to COVID-19 but is now scheduled for January 2021.  While such a bellwether trial is not binding on subsequent Bard hernia mesh trials, the outcome will significantly impact the thousands of other hernia mesh cases awaiting trial. 

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