Litigation Update: Bard PowerPort
Litigation Update: Bard PowerPort from Legalcalls.com by Attorney Jeff Keiser.
“After 3 weeks of running Bard Powerport, this has turned out to be a nice tort with clear-cut criteria. Current pricing, while favorable now, will not last. See my notes below” – Craig Alinder
The mass tort world has been pretty quiet for the last few months, but the Bard PowerPort case is starting to interest a lot of people, ourselves included.
Let’s start with a bit of background about the inherently dangerous product, and what has happened in the litigation.
The product is an implantable cardiovascular catheter device that allows someone to repeatedly deliver medications, intravenous fluids, parenteral nutrition solutions and more. It’s a small plastic disk that is implanted into the skin.
The primary design flaw claimed by plaintiffs is that the specific polyurethane (Chonoflex AL) used in the product’s construction was poorly chosen as it leads to fracture, migration, infection, and more.
They Knew About It?
Even worse, plaintiffs have reason to argue that Bard was aware of these defects and ignored the problem.
Shortly after releasing the product, Bard started receiving adverse event reports (AER), but continued to sell and market the product. In fact, it appears as if these AERs did nothing to slow down the company.
Instead, they redoubled their efforts, until, at least, March 2020, when the FDA recalled three models of the PowerPort, citing reasons like bloodstream infection, displacement, fracture and DVT.
What Really Makes This Interesting
That is interesting, but it’s hardly the number one thing lawyers want to know. Let’s get to the good stuff.
More than 300,000 of these devices have been implanted in people since they first came out, and more than 70% of those were made by Bard.
Obviously, not all of these devices failed, so we can’t argue for a plaintiff pool approaching the 3M Combat Arms case, but there are still a substantial number of potential victims.
Some law firms have estimated a plaintiff pool of between 8,000 and 12,000, and that sounds just about right to me. So, there are cases out there, and a lot of them appear to be unrepresented.
Centralized in August
In August, the JPML centralized the case as MDL 3081 in Arizona’s district court, in front of Judge David Campbell. This judge was appointed by a Republican and is a conservative jurist.
Despite that, he is well known and well respected in the legal community. It won’t be an easy case, but it will be fairly handled.
Since centralization, more than 60 cases have been transferred, and many more are expected. In addition, a New Jersey state MDL (or MCL as it is locally known) will also be consolidated.
A plaintiff firm in New Jersey claims to have more than 500 plaintiffs to file in this litigation.
Busy Legal Dept
I, for one, thought we were nearing the end of Bard litigations. In 2014, they settled their pelvic mesh cases for $21 million, and in 2020, they paid another $60 million for their deceptive marketing of the devices.
They continue to face more than 11,000 plaintiffs in the polypropylene hernia mesh litigation, and 1,300 plaintiffs in the IVC filter litigation.
Bard’s legal department is definitely busy, and they must be getting ready to face these new PowerPort cases too.
Potential but Lagging
There are only 60 cases in the MDL, but we see the potential for 10,000 cases, or more. Why is the case lagging?
Many theories are out there, but we don’t believe this is a case where plaintiff lawyers are sitting on pools of cases. Instead, it makes more sense at this point in time that doctors and patients are trying to connect the device to the side effects and that could take some time.
As lawyers start marketing this case with more frequency, that will also drive case evaluations, and eventually, more cases will be filed.
Just Getting Started
Needless to say, this case is just getting started, and there will be a lot more information as the MDL gets going.
As of today, there’s no court website for the litigation, and no notice of any status conferences or hearings of any kind. The Court has announced Co-Lead Counsel and a PSC, but there are a lot of new names on the list.
It’s interesting to have an MDL without the MTMP crowd. It’s going to take some time to see how it works out.
A Note From Craig Alinder
I spoke with our fulfillment department and they were able to give us some color on what they’re seeing so far:
- Early results in the Bard PowerPort tort indicate that the most common injury experienced from a faulty port is infection severe enough to warrant removal of the device. Next are blood clots, fractures (where the port cracks but stays whole), and breaks (where the pieces separate). Extremely rare are situations where the pieces of a broken port migrated and either punctured or embedded into an artery or organ.
- The most common complications arising from a port malfunction are severe and persistent pain around the port, leakage at the port site, and blood clots which sometimes lead to pulmonary embolism. The average time of hospitalization for the malfunction and associated complications is 4 days.
- We are seeing approximately 35% of port cases filed by a representative due to the subsequent passing of the injured party. However, none of the deceased died of complications arising from their port malfunction, but instead from the original diagnosis which required the port, typically cancer.
- Within our current cohort of cases, chemotherapy is the most common form of medication delivered via port, but we are also seeing cases of port-delivered medications for sickle cell anemia, multiple sclerosis,rheumatoid arthritis, and Crohn’s disease.
We have a JPML hearing at the end of November, and they always seem to kick start things. New cases and new developments. In the meantime, get out there and get those cases filed. Until next time…
Craig H. Alinder, Vice President