The stage is set for the first Bard hernia mesh trial to proceed in January, 2021. Despite the attempts of Bard attorneys to have the case dismissed as well as exclude expert witnesses from testifying, a judge presiding over the roughly 8,000 Bard hernia mesh product liability lawsuits has determined the first so-called bellwether trial can proceed. (A bellwether trial is the first case or few cases in a mass tort action, which occurs when thousands of people suffer an injury by the same defective device or drug.)
Plaintiffs allege that defective hernia mesh, made out of polypropylene has caused one or more of the following problems:
- Infections
- Severe abdominal pain
- Adhesions to other organs or erosion of the device
- Other complications
Most often, the defective mesh implant required an additional surgery to remove the device.
Although the judge did grant Bard motions for summary judgment regarding manufacturing defect claims and allegations under the Consumer Sales Practices Act, while also determining that claims related to a subsequent recurrent hernia, and resulting injuries and treatment could not be pursued, the bulk of plaintiff claims will be allowed to proceed.
According to AboutLawsuits.com, these include:
- Design defects
- Failure to warn
- Negligent misrepresentation
- Breach of implied and express warranty
Bard also tried to persuade the jury to not consider punitive damages. However, the judge ruled that punitive damages may be warranted, based on the evidence. Because of the SARS-Co-V-2 pandemic, the bellwether trial has been postponed twice.
If Bard loses the first trial, the result will not apply to the other cases, however, bellwether cases can have a big impact on future trials.
