Judge Establishes Timeline for Selecting Bard IVC Filter Bellwether Cases

In August 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated the federally filed Bard IVC blood clot filter lawsuits into a court in the District of Arizona. Since then, the parties have been working on the process to select a small number of cases that will be the first to go to trial.

Judge David G. Campbell is overseeing the proceedings and on May 5, 2016 he signed a case management order setting out the case selection process, which will identify the 50 cases eligible to be tried first; about 400 cases are pending in the federal court system, the Legal Examiner reports.

These cases have been filed by plaintiffs who allege they were injured by a Bard IVC (inferior vena cava) blood clot filter, implanted to prevent blood clots from traveling to the heart or lungs. The plaintiffs say they experienced filter migration, breakage, blood clots, and vein and organ perforation.

Inferior vena cava blood clot filters are small, cage-like devices that are implanted in the main vein that travels from the legs back to the heart. The filter is designed to capture and hold blood clots until they dissipate, so they cannot a pulmonary embolism (blood clot in the lung). IVC filters are implanted in people who either cannot take blood-thinning drugs, or for whom the drugs are not effective.

Bard IVC filters have been found to be prone to breakage. The “legs” can break off and migrate to other parts of the body and the device itself can also tilt out of position, perforating the vein and potentially causing blood clots rather than preventing them.

The goal of Judge Campbell’s May order is to select a small number of cases that to be bellwether to trials—early trials that help the parties gauge how juries will react to evidence and legal arguments that would be presented repeatedly in trials. Often, bellwether trial outcomes prompt settlement negotiations that help the parties resolve the entire litigation more quickly.

Judge Campbell said that any case filed before April 2016 will be eligible for inclusion in the bellwether process. He then set a series of deadlines. By June 29, 2016, the parties were to exchange their lists of 24 representative cases. These 48 cases will constitute Group 1. By December 9, 2016, the parties will exchange lists of 10 cases selected cases from Group 1. The parties can also designate four cases for automatic inclusion in Discovery Group 1 at that time. (Discovery is part of the pretrial process in which the parties obtain evidence and ask questions of each other). By December 16, 2016, the parties will complete this part of the process and submit a list of 12 cases they recommend as Discovery Group 1.

By March 1, 2017, the parties will exchange lists of six proposed selections from Discovery Group 1 for bellwether plaintiffs. They will meet and confer to come up with six final cases to constitute Bellwether Group 1. After the full group is confirmed, trial dates will be set.

In addition to the Bard IVC cases, at least another 200 cases involving Cook Medical’s IVC filter are part of a separate MDL centralized in the Southern District of Indiana.

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