The final bellwether product liability trial against C.R. Bard has been rescheduled yet again. After a November and December date, the trial of Carolyn Jones has now been scheduled for January 10 in the federal courthouse where 40,000 transvaginal mesh lawsuits are consolidated in front of Judge Joseph R. Goodwin. This will be the final bellwether trial naming Bard where both sides test their arguments before a jury.
So far the verdicts for Bard have not been favorable. The company lost the first bellwether trial filed by Donna Cisson, a Georgia woman implanted with the Bard Avaulta mesh. She was awarded $2 million, which includes $1.75 million in punitive damages.
The second case of Wanda Queen settled in her favor on the morning of trial for an undisclosed amount. The third case was dropped by the plaintiff because of problems with a witness. A California state court trial in June 2012 resulted in a $5.5 favorable verdict to plaintiff Christine Scott and her husband.
This will be the fourth and final trial naming C.R. Bard in this federal multidistrict litigation. Jones is a resident of Tippah County, Mississippi who is suing C.R. Bard of Murray Hill, New Jersey and Covidien/ Sofradim, a Delaware company. Bard was using mesh products made by Sofradim when Mrs. Jones was implanted with an Avaulta mesh in August of 2008.
This product liability case alleges a design and manufacturing defect, negligence, a failure to warn and breach of an express warranty of safety. When Bard assured the public, doctors and hospitals that its product was safe for its intended use, the patient and her doctor decided to use the Avaulta mesh. It’s alleged the defendant breached these express warranties because the product was unreasonably dangerous and defective and not as the defendant had represented.
What we have learned so far from the previous federal Bard cases (as well as the Christine Scott trial) is that Bard knew of the risks and failed to warn doctors. Evidence has been shown that the company knew its raw material, a resin polypropylene, was not to be used to make implanted medical devices. Instead, Bard created a front company, Red Oaks, that bought the resin therefore shielding Bard from any suspicion. The company also never studied how to remove the mesh products and failed to perform any clinical trials on humans before it was marketed.
There are presently 5,784 defective product cases naming C.R. Bard filed in the Charleston, West Virginia court, consolidated before Judge Goodwin. What’s interesting is a pre-trial conference is set for the day before the January 10 trial date just in case there is any opportunity to settle the case prior to trial. A settlement bypasses any potential for a punitive damage award which were given in both C.R. Bard trials that went to trial. Bard is appealing both the Donna Cisson trial as well as the Christine Scott verdict but it is far better for the company never to face a large punitive award in the first place.