Federal Court Overseeing Bard Hernia Mesh Lawsuits Enters Protective Order Favored by Plaintiffs’

Published on November 7, 2018 by Sandy Liebhard

The federal court overseeing hernia mesh lawsuits involving C.R. Bard, Inc.’s polypropylene implants has agreed to enter a Protective Order based on a proposal put forth by Plaintiffs’ Counsel.

Parties at Odds Over Third-Party Witness Signatures

According to an Order and Opinion issued in the U.S. District Court, Southern District of Ohio on November 2nd, the parties agreed on nearly all aspects of the Protective Order. However, attorneys for C.R. Bard and it Davol, Inc. subsidiary wanted third-party witnesses to sign the Protective Order before they viewed confidential materials during their depositions.

Among other things, they argued that it would be difficult for Defendants’ to ensure their proprietary materials remained confidential without the requirement. They also asserted that the Court would not be able to enforce the Protective Order without witness signatures.

Plaintiffs’ Counsel disagreed, arguing that there was no reasonable basis for imposing such a requirement on third-party witnesses once they had agreed under oath not to disclose confidential materials.

Court: Plaintiffs’ Proposal Eliminates Potential Impediment to Discovery

Plaintiffs also suggested that the requirement would impede their ability to develop their case, as implanting physicians could be reluctant to sign a protective order. However, third-party physician witnesses are usually open to making a verbal, on-the-record statement to maintain confidentiality.

The Court ultimately decided to enter a Protective Order based on the Plaintiffs’ proposal.

“On Balance, and at this early stage of the case, the Court finds that it is the better exercise of discretion to adopt the Plaintiffs’ Proposal,” the Opinion States. “Plaintiffs’ proposal eliminates a potential impediment to discovery of relevant information, while imposing a modest burden on Defendants. This is an imperfect, but necessary balancing of the Parties’ interests.”

The Court further noted that either party would be free to request modification of the Protective Order as discovery progressed.

Bard Hernia Mesh Allegations

Roughly 171 hernia mesh lawsuits are now pending in the multidistrict litigation underway in Ohio.

All of these cases were filed on behalf of individuals who suffered adhesions, organ damage, inflammatory responses and other serious injuries following implantation of Bard’s polypropylene hernia products, including Composix E/X Mesh, Ventralex Hernia Mesh, Composix Mesh, Kugel Hernia Patch, CK Parastomal Patch, and the Modified Kugel Patch.

Among other things, Plaintiffs assert that the polypropylene used to manufacture Bard’s devices is biologically incompatible with human tissue, greatly increasing the odds that recipients will experience hernia recurrence and other complications that require revision surgery to remove the implants.

The first trials in the Bard hernia mesh litigation are expected to begin within the next 16 months. As bellwether trials, verdicts in these case could provide insight into how juries will decide similar hernia mesh lawsuits.

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