On September 1, 2020, District Judge Edmund A. Sargus, the presiding judge for In re: Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., MDL No. 2846, issued the summary judgment ruling in the first bellwether trial. Johns v. C.R. Bard, Inc., is a Ventralight™ ST case which is a defense pick and which is set for trial on January 11, 2021. The ruling leaves intact nearly all of the plaintiff’s legal theories of relief but trimmed the scope of compensatory damages available to the plaintiff.
Judge Sargus denied the motion with respect to the product liability claims, including failure to warn and design defect claims, and also found that the plaintiff has presented sufficient evidence through which a reasonable jury could find that the defendants committed “intentionally fraudulent conduct” or displayed “knowing and reckless indifference” to the consequences of its conduct. The Ventralight™ ST case involves a polypropylene hernia mesh patch which is manufactured with a hydrogel coating to protect the body’s organs from adhering to the polypropylene patch.
A key issue in the case is how quickly the hydrogel resorbs and leaves bare polypropylene exposed to visceral organs such as the bowel, liver, and omentum. In the ruling, the Court discussed the Ventralight™ ST Instructions for Use which indicates the hydrogel lasts for up to 30 days. The Court found that a reasonable jury to determine that the defendants knew or should have known that the hydrogel resorbed well before the 30 days.
The Court pointed to documentary evidence as well as deposition testimony of the former President of the manufacturer indicating that defendants knew the hydrogel resorbed in less than 7 days, rather than the 30 days referenced on the IFU. Further, the Court pointed to an email a marketing employee told his colleagues: “I know we’ve always it lasts for up to 30 days, if we start saying 7 days, it may compromise surgeons’ opinions of how effective the barrier is.”
Because the implanting physician was not informed that the hydrogel resorbed in significantly less than 30 days, and because nothing in the IFU would inform a reader that the hydrogel resorbed in significantly less than 30 days and could lead to complications such as those suffered by the plaintiff, the Court ruled that the summary judgment motion would be denied as to the failure to warn claim. The Court also found that, because there was competent expert evidence demonstrating the availability of a safer alternative design to defendants, a reasonable jury could find in the plaintiff’s favor on the design defect claims.
The Court also denied the motion insofar as it sought to have the Court dismiss plaintiff’s punitive damages claims: “Specifically, there are genuine issues of fact as to whether Bard misrepresented or concealed information regarding the timing of the resorption of the ST and the substantial risks associated with such early resorption – such as the exposure of bare polypropylene to visceral organs – that could lead a jury to conclude they acted willfully or recklessly.”
Levin Papantonio senior shareholder Tim O’Brien is Co-Lead Counsel for the MDL No. 2846 Plaintiffs Steering Committee and is Lead Trial Counsel for the bellwether cases in the MDL. Levin Papantonio shareholder Robert Price is Co-Chair of the PSC’s Discovery Committee in the MDL.