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Who Decides in the Bard Hernia Mesh Mediation If There is a Settlement?

By David B. Rheingold, Esq.

By David B. Rheingold, Esq.

The well-regarded Judge Edmund A. Sargus, Jr., ordered the parties on February 29, 2024, to a mediation process scheduled for approximately three months. In-person meetings will occur with the parties and a court-appointed Settlement Master, John Jackson of Ascend ADR. Judge Sargus’s Order demands that mediations occur through May 24, 2024.

There are over 21,000 plaintiffs and they will be represented by three negotiating attorneys in the federal litigation. Bard will select their own negotiating team. While our firm’s litigation experience against Bard might help us guess who will be part of that team, there has been no public announcement.

Mediators such as John Jackson will request an advance briefing on each party’s settlement position. Often, the opposing settlement teams will not meet face-to-face. The mediator shuttles back and forth. Mediations can sometimes be a tedious procedure until significant breakthroughs have been made.

How Does a Mediator Guide Parties to a Settlement?

Past trials in litigation can help as a guide. For instance, Bard mesh verdicts have been: one defense verdict, and three plaintiff verdicts:

  • Milanesi: $250,000
  • Stinson: $500,000
  • Trevino: $4,800,000

A mediator will use verdicts as a guidepost based on the type of mesh involved and the nature of the injury. Mediation will include a “census” of the cases. This census will categorize the types of meshes and the injuries, including how many plaintiffs had “enhanced” and “extraordinary” injuries. Bard will want census categories that favor them. Categories may be divided into whether the mesh was never removed, if the mesh was removed for reasons other than a mesh defect, if the plaintiff had many pre-existing conditions which contributed to mesh issues, and other factors.

If There is a Settlement Plan, What Will it Look Like? Will Individual Plaintiffs Have Any Say?

Settlement plans come in all shapes and sizes. There is no perfect plan. Settlements are often what both sides are willing to tolerate. Plaintiffs may have the ultimate say through a ballot procedure. There may be a requirement that a certain percentage of plaintiffs agree to participate after they have been given adequate time to discuss the settlement values with their lawyer. Our firm has extensive experience in discussing settlement or continued litigation with clients.

What Role Does the Mediator Play Beyond Mediating the Ultimate Settlement Values?

Reporting Updates to the Judge Sargus. Judge Sargus has openly stated he wants a resolution to the litigation. He will get settlement updates from Mr. Jackson. The judge also has the option to be present at mediation. If there is no settlement, the judge will institute rigorous future litigation protocols. Assuming he will not do further test rials, he can implement a remand process. All the individual cases will be returned to appropriate jurisdictions. His consolidation court will be closed. In past litigations, Bard has stalled settlement until this occurred.

Mandating the “informed consent” for each clientParticipating plaintiffs need full information about what their claims would be within the settlement plan. The paperwork can be lengthy, but it is important to be understood. Firms such as ours have extensive experience in discussing settlements in “plain English.”

Overseeing the final settlement documentation. Written settlement plans can be over one hundred pages of lawyered-up fine print. There are endless administrative details to consider. The mediator makes sure every “i” is dotted and every “t” is crossed. Even when parties agree to everything, there are lots of nuts and bolts that must be worked out.

What to Expect Next

In short, we expect mediations to have significant pressure for a Bard hernia mesh litigation settlement. Currently, if that happens, it is too early now to know what claims will be considered and what settlements will be. If you have questions about a potential Bard hernia mesh claim, please contact us for a free and confidential consultation. We represent clients from all fifty states.

Picture of David B. Rheingold, Partner

David B. Rheingold, Partner

David specializes in an active trial practice primarily involving drug products, medical device liability and product liability cases. On both a state and national level, he has obtained substantial client settlements through arbitration, mediation and direct negotiations with some of the largest national and international drug and medical device makers. David has been involved in multiple high-profile legal cases including the $2.5 billion DePuy ASR and DePuy Pinnacle metal-on-metal hip implant settlement plan and the $1.4 billion Stryker Rejuvenate metal-on-metal hip implant settlement plan.

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