When C.R. Bard Inc. took its port-a-cath products to market in the early 2000s, they came as a welcome breakthrough in the treatment of serious medical conditions that require the constant intravenous delivery of medications. In August 2023, the company, since acquired by the multinational Becton, Dickinson and Co., suffered a brutal defeat as pending product liability lawsuits filed against it were consolidated into a multidistrict litigation (MDL) in an Arizona federal court.
Prior to an initial conference in mid-September, plaintiffs’ counsel, pursuant to typical MDL procedure, submitted to the court a proposed leadership structure to oversee consequential pretrial proceedings. Although Becton, Dickinson and Company and Bard sought to complicate the filings, they failed to prevent the court from granting the proposal on September 19.
With a robust and competent leadership structure now in place, the victims of BD and Bard’s irresponsible business practices are one step closer to getting the compensation they deserve.
Bard PowerPort Plaintiffs’ Leadership Counsel to Oversee Discovery Process, Pretrial Negotiations
After the U.S. Judicial Panel on Multidistrict Litigation (JPML) granted a transfer order to consolidate multiple Bard PowerPort lawsuits, it assigned the MDL to the U.S. District Court of the District of Arizona. There, Judge David G. Campbell requested that plaintiffs’ counsel collaborate to produce a case management order outlining an amicable leadership structure to streamline the discovery process and other pretrial proceedings.
The two case management orders Judge Campbell issued on September 19, 2023, approved the intricate hierarchy the plaintiffs’ attorneys proposed in early September in preparation for an initial status conference and accepted the applications of counsel who sought appointments in it.
In the future, the following court-approved bodies will collaborate to facilitate the crucial discovery process and initiate pretrial settlement agreements:
- Plaintiffs’ Co-lead counsel
- Plaintiffs’ Executive Committee (PEC)
- Plaintiffs’ Steering Committee (PSC) / Liaison Counsel
- Eight additional subcommittees
Initial Resistance to Leadership Structure Seemingly Resolved
Although the newly christened Plaintiffs’ Leadership Counsel collaborated closely and amicably with dozens of participating attorneys while contriving the leadership structure, there was minimal but noticeable resistance from select counsel at the outset. One prominent California-based trial attorney frequently rejected overtures from the contending leadership to offer him a position at the highest levels of the apparatus.
The holdout constituted a potential threat to the legitimacy of the leadership structure at its inception. In their September 11 motion, the tentative leadership asserts that it was prepared to offer any displeased party a position pursuant to their and their clients’ interests.
It appears that the holdouts accepted the offer. In his case management order, Judge Campbell mandates the appointment of the California trial attorney to the PEC and grants him the right to appoint an advocate of his choosing to the Plaintiffs’ Steering Committee (PSC).
Bard PowerPort MDL Judge Orders Parties to Submit Joint Memorandum
In a second case management order, Judge Campbell requests that the parties submit several documents determining the trajectory of the MDL, including:
- Case management order from PLC
- Master and short-form complaint from PLC
- Master answer from defense
- Joint memorandum
The filings, which must be submitted between October 13 and November 9, will provide a clearer contour to the receptiveness of the court in accepting motions to dismiss from the defense, the ease with which the PLC incorporates emergent lawsuits into the MDL, and the criteria for bellwether trial selection.
Court Aims to Conclude Bard PowerPort Bellwether Trials by September 2026
One of the overarching imperatives at this point in the Bard PowerPart MDL is the hasty collection of evidence through the discovery process to enable the litigants to prepare for bellwether trials, the criteria for which Judge Campbell orders the parties to list in a Joint Memorandum.
Composed of select and representative cases from the MDL, the bellwether trials would permit the plaintiffs and defense to determine the general orientation of juries toward the Ozempic plaintiffs’ claims. If the results of early bellwether trials suggest that juries are sympathetic to the victims, the defense has an evident incentive to settle before all of the cases are remanded to state courts for trial proceedings.
Overall, the U.S. District Court for the District of Arizona intends to conclude the bellwether trials by September 2026, which means that the other cases composing the MDL will likely not reach some kind of pretrial settlement agreement until the final quarter of that year at the earliest.
Recent Court Management Orders Finalize Turbulent MDL Consolidation Process
Becton, Dickinson and Company has fought over the past two months to complicate the legal proceedings, denying the liability of its recently acquired subsidiary, Bard, and rejecting any wrongdoing on its own part. During the hearings at the JPML in August, the defense even railed against what it alleged were illicit advertising campaigns perpetrated by the prosecution, even citing them as sufficient proof to invalidate requests for consolidation.
Although Judge Karen K. Caldwell, writing for the panel, dismissed the arguments, the plaintiffs’ counsel has faced multiple motions to dismiss select cases in the MDL for the Bard PowerPort lawsuits, and Becton, Dickinson and Co. appear poised to exploit any and all fissures in the prosecution to delegitimize the proceedings.
Nevertheless, Judge Campbell’s recent case management orders have laid to rest the preliminary efforts from the defense to derail the litigation, which is geared to plague the multinational company for years to come. It remains to be seen how Becton, Dickinson and Co. will behave in the aftermath of the solidification of the plaintiffs’ leadership structure, particularly because it appears to have eliminated internal factions and rivalries.
We will get a clearer idea of how the company is likely to behave upon the submission of a court-ordered Joint Memorandum which Judge Campbell requested in his case management order. One of the inquiries the filing is required to address is the legal basis of liability in the Bard PowerPort lawsuits, which may result in BD & Co. distancing itself from its subsidiary.
Complications Connected to Bard PowerPorts
The Bard PowerPort litigation is fundamentally a product liability lawsuit for a series of defective medical devices that endangered users while lining the pockets of the manufacturers and suppliers. Becton, Dickinson and Company and Bard are facing claims of failing to warn users of their port-a-cath products’ tendency to degrade, migrate, and fracture.
Active Bard PowerPort lawsuit plaintiffs argue that the company made use of an unstable compound of polyurethane and barium sulfate to construct its PowerPorts, which, over time, have the potential to result in life-threatening complications, including:
- Severe infections
- Deep Vein Thrombosis (DVT)
- Organ damage
- Cardiac arrhythmia
Bard and, subsequently, Becton, Dickinson and Co.’s failure to warn users of these risks is uniquely egregious because patients who rely upon Bard PowerPort for the intravenous delivery of nutrients and medications are already struggling with oftentimes severe medical conditions. For instance, one of the most common purposes of the port-a-cath series is to facilitate chemotherapies for cancer.
Bard Access Systems Relied on FDA Loophole to Hide Defects for Decades
Unfortunately for the named defendants, there is little plausible deniability. When exposé reporting from Kaiser Health, in 2019, revealed the existence of a secretive Alternative Summary Reporting (ASR) repository that the FDA employed to house adverse events reports (AERs) from manufacturers, the agency published the annual submission which it had received from 1999 to 2018.
Thousands of the AERs disclosed that Bard was well aware of the complications associated with the use of its PowerPort series, but failed to issue voluntary recalls. Seeing as BD acquired Bard at least a year before the FDA disclosure, it, too, was likely aware of the malfeasance of its subsidiary.
Under normal circumstances, the AERs would be submitted as medical device reports (MDRs) to the FDA’s Manufacturer and User Facility Device Experience (MAUDE) database, whose contents are publicly accessible. Physicians and users not only are permitted to submit MDRs to the database themselves but often review existing records to make a determination about whether or not to rely upon a particular product.
However, §510 (k) of the expansive Federal Food, Drug, and Cosmetic Act permits the FDA to fast-track the approval process for medical devices that are sufficiently analogous to a preexisting device already on the market. By removing the extensive screenings that might have revealed the profound structural errors of the Bard PowerPorts and subsequently withholding vital information from the public, the FDA enabled Bard to continue with the sale of dangerous, defective devices.
Common Damages in Bard PowerPort Lawsuits
Coping with severe medical conditions which require the implantation of Bard PowerPorts is difficult enough. Adding equally if not more severe complications caused by the defective devices may seem nightmarish.
The costs associated with the treatment of the side effects of Bard’s port-a-cath series can be astronomical, and, unfortunately, insurance companies tend not to cover all of the expenditures. If you decide to file a lawsuit against Becton, Dickinson and Company and its subsidiary, you may be eligible to seek compensation for:
- Medical expenses – past, present, and future
- Lost wages and income
- Emotional distress
- Decreased quality of life
With the help of a qualified Bard PowerPort lawyer, you can determine the precise figure in damages to which you may be entitled and rest assured that your counsel will fight assiduously to acquire it.
Contact an Experienced Bard PowerPort Lawyer for Help
When multinational pharmaceutical companies and their subsidiaries place the bottom line above the public’s safety, we want to hold them accountable. We take the recent developments out of Arizona as a positive sign, and now that the leadership structure is secure for at least one year’s time, plaintiffs’ counsel can get to work collating evidence that exposes the egregiously irresponsible business practices of Becton, Dickinson and Company and Bard.
If you had or currently have a Bard PowerPort implant and have developed any of the serious adverse side effects associated with its malfunction, our qualified and local product liability lawyers want to speak with you. In a free consultation, you can share your experience with us and receive a preliminary assessment about the eligibility of your claims and the potential compensation to which you may be entitled.