By Christina Grube, MTN Correspondent

(MASS TORT NEWS) – U.S. District Judge Edmund A. Sargus officially scheduled the third and fourth bellwether trials in the C.R. Bard MDL 2846, the largest hernia mesh multi-district litigation (MDL) in the United States. During a recent case management conference, Judge Sargus scheduled Stinson v. Davol (Case No. 18-cv-1022) to begin on February 23, 2023 and Bryan v. C.R. Bard, Inc. (Case No. 18-cv-1440) to begin on May 15, 2023.

Judge Sargus also appointed John Jackson as the official case settlement master. Settlement masters serve to facilitate settlement negotiations between plaintiffs and defendants to avoid litigating thousands of cases against a medical device distributor. Jackson serves as a Settlement Special Master at Ascend ADR, a business dispute resolution​ service.

Hernia mesh products refer to synthetic patches designed to stabilize a hernia internally while it is healing. Doctors surgically place hernia patches inside patients undergoing hernia surgery. As the hernia heals, the surgically implanted patch dissolves. Should another hernia develop, a second surgery would be necessary, with the implantation of another patch. C.R. Bard, one of the largest names in hernia mesh, released a permanent, non-disintegrating hernia mesh, marketed to those who struggle with recurrent hernias. 

Bard made its permanent mesh from polypropylene and coated one side with an adhesive allowing the mesh to attach permanently. The polypropylene design with the adhesive kept the patch from dissolving while also keeping it in place. However, the polypropylene proved incompatible with the patient’s immune systems, resulting in severe internal reactions to the foreign body, including pain, inflammation, and infection. The adhesive also proved faulty and disintegrated causing the mesh to detach from the hernia and migrate, resulting in bowel obstruction, attachment to other tissue, and organ rupture. Though there are currently multiple MDLs over defective hernia mesh, the Ohio-based Bard MDL (no. 2846) remains the largest MDL, with over 16,000 claims. 

Bellwether trials in this MDL began in 2021 and the Bard defense won the first round. Though the Bard victory surprised many, attorney Ronald Miller noted a historic pattern of big pharma winning the first bellwether trial. 

“The same thing happened 10 years ago in the Kugel Mesh litigation (a predecessor to the current hernia mesh litigation). Bard also scored a surprise victory – at least to plaintiffs’ attorneys – in the opening bellwether trial,” wrote Miller. “But the second bellwether trial generated a $1,500,000 verdict for the plaintiff.”

The second bellwether trial in the Ohio-based Bard MDL  took place in April 2022, yielding a victory for plaintiffs. The court awarded Mr. Antonio Milanesi and the late Mrs. Milanesi a $255,000 settlement: $250,000 in compensatory damages and $5,000 for loss of consortium.

Despite the scheduled 2023 bellwether trials, many expect a case settlement reached before the end of 2022. Plaintiffs’ Co-Lead Counsel Timothy M. O’Brien and Settlement Master John Jackson declined to comment on the future and progress of the MDL. 

MTN contacted several other sources involved in the litigation, including members of the Plaintiffs’ Liaison Counsel, Plaintiffs’ Executive Committee, and Plaintiffs’ Steering Committee, all of which gave no response to inquiries on the future of the lawsuit. Silence from docket leadership may indicate a potential settlement agreement underway.

However, the newly scheduled bellwether trials will proceed regardless of a 2022 settlement. The MDL covers multiple Bard products and the expected settlement may only cover one of multiple products. Plaintiffs affected by a Bard product not included in the predicted settlement will remain in court.

Christina Grube