C.R. Bard has been in the transvaginal mesh cases from the very beginning. I really believe they will try to put together a global settlement that will resolve more than just the cases with pending trial dates. But in the meantime, Bard will do what it has done from the beginning of this litigation: wage war. But facts are stubborn things which brings us back to the same theme: these cases will settle.
Bard is not only fighting the new cases, it is fighting the battles it has already lost. The most recent battle was a verdict against the company for over $1.4 million.
Bellwether Verdict
The case was a good test case although it was a case that was actually pretty favorable to the defendant because the injuries were not as serious as they are in some other cases. It is the classic design defect/failure to warn claims against Bard’s Avaulta Plus, a synthetic mesh product designed to treat pelvic organ prolapse. The woman’s lawsuit claimed that that the arms contained in the mesh device, the small pore size used in the mesh, and the use of polypropylene to make the device were design defects. On their failure to warn claim, the plaintiff argued that Bard inadequately warned about the risk and severity of the complications Plaintiff eventually experienced. Plaintiff also argued the obvious: Bard did not adequately warn of the risks. (Does anyone really disagree with this premise? I don’t know how they argue that one.)
Bard sought a new trial after the verdict, arguing the case never should have gone to the jury. Comically, defense counsel actually conceded that many of these issues appropriately went to the jury. But they did a takesey-backsie (is that how you spell it?) on it arguing that there was not enough design defect evidence to go to the jury.
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Statutes of limitations can be very unfair. But as harsh as the SOL can be, a statute of repose can far more Draconian, closing the courthouse steps on cases where the victims did everything they could to bring a timely action.
