With over 3,000 Bard IVC filter lawsuits pending in multidistrict litigation 02641 (MDL 2641) in the U.S. District Court for the District of Arizona, the parties are vigilantly engaged in final pretrial motion practice on the eve of the first Bard IVC bellwether trial which is set to begin on March 13, 2018 (Sherr-Una Booker v. C.R. Bard, Inc., 16-CV-474).
The inferior vena cava (IVC) is a large vein that returns blood to the heart from the lower body. IVC filters (depicted below) are small metal devices implanted in the IVC to catch blood clots before they reach the heart and lungs. Seven different versions of Bard IVC filters are at issue in MDL 2641 – the Recovery, G2, G2 Express, G2X, Eclipse, Meridian, and Denali.
The bellwether plaintiff, Sherr-Una Booker, was implanted with a Bard G2 filter in June 2007 and alleges that it tilted, migrated, perforated her IVC, fractured, and that broken limbs of the device migrated to other parts of her body, causing severe injuries.
On December 31, 2015, NBC NEWS released an investigation that it had conducted of the Bard G2 series filters which had replaced Bard’s earlier version, the Recovery filter. Introduced in 2002, “a confidential study commissioned by Bard showed that the Recovery filter had higher rates of relative risk for death, filter fracture and movement than all of its competitors.” However, as alleged by NBC, the G2 series filters were simply a modified version of the Recovery filter and Bard was aware that it had “similar and potentially fatal flaws” shortly after it was put on the market. Instead of recalling the replacement filters, they were kept on the market for five years. According to Bard and FDA records, at least 12 deaths and hundreds of problems have been linked to the G2 series filters.
In Court this week, the defendants, C.R. Bard, Inc. and Bard Peripheral Vascular, Inc., moved for an order bifurcating the bellwether trial. Specifically, the defendants’ are requesting that the Court conduct the Booker trial in two phases: first, determining liability, compensatory damages, and whether punitive damages should be awarded and, secondly, if necessary, determining the amount of punitive damages that should be awarded.
This is an attempt by the defendants to shield the jury from evidence that Bard deems prejudicial, namely, Bard’s enormous financial net worth. With a market capitalization of $24.14 billion, the S&P 500 company hopes that the jury will not hear evidence of the pharmaceutical giant’s ability to pay a substantial punitive damage award until after there has been a determination of liability.
In addition to the motion to bifurcate, Bard has also filed a series of Motions in Limine to exclude certain evidence from being presented to the jury. Specifically, Bard hopes to exclude evidence of complications involving other Bard IVC filters, including the Recovery Filter (which has been associated with 27 deaths and several hundred non-fatal problems), and to require Plaintiffs to prove, outside of the presence of the jury, that other incidents are substantially similar to the alleged complications at issue in Ms. Booker’s case.
Defendant Bard has also asked the court to exclude any evidence concerning a July 13, 2015 Warning Letter from the Food and Drug Administration to Bard’s Chairman and CEO because, among other reasons, it may have a “prejudicial effect” on the jury. The FDA letter details problems found at Bard’s facilities in Tempe, Ariz., and Queensbury, N.Y., during separate inspections in 2014 and 2015.
Lawyers at Paglialunga & Harris, PS are litigating cases for individuals who have experienced complications following an IVC implant. If you or somebody you know was implanted with an IVC filter, please contact our lawyers immediately for a free case consultation.