U.S. District Judge Joseph Goodwin has rejected an attempt by C.R. Bard Inc. to halt a bellwether trial due to comments he made in court that were published in an online news article. Goodwin has grown tired of CR Bard’s delaying tactics and will deny their motion to block next month’s pelvic mesh trial.
Bard is one of seven manufacturers sued over pelvic mesh devices, which are implanted in women to treat pelvic organ prolapse and urinary incontinence. Bard, which faces 10,000 lawsuits, is set to go to trial on Feb. 18 against an Ohio woman who claims she suffered pain and urinary problems after having its Avaulta device implanted in 2007.
Bard moved to continue the trial and suspend all future trials based on statements made by U.S. District Judge Joseph Goodwin on Dec. 9 that the company faced potentially “billions of dollars” in liability and should consider settling its cases. Those statements, Bard said in a Dec. 24 motion, were “distorted” by a Bloomberg.com news story and financial analysts.
The company’s attorney, Lori Cohen, chairwoman of Greenberg Traurig’s pharmaceutical, medical-device and health care litigation practice and of the trial practice in the firm’s Atlanta office, declined to comment. Lead plaintiffs attorney Joseph Rice, co-founder of Motley Rice in Mount Pleasant, S.C., called Goodwin’s decision a “fairly straightforward ruling.”
“It requires a factual finding, and they don’t give him factual support,” he said.
Bard, in a motion filed on Friday by Eric Alexander, a partner in Reed Smith’s Washington office, immediately moved for summary judgment, claiming the plaintiff, Debra Wise, had a “longstanding history of pelvic issues” before having the device implanted in West Virginia. Bard also claimed her surgeon was aware of the device’s risks and that claims for negligence, manufacturing defect, failure to warn and punitive damages fail under both Ohio and West Virginia laws.
Rice called those arguments “general questions of fact for the jury, and based on what I’ve seen in the preparation for the case, there’s disputes by the experts going both ways.”
Goodwin is in the process of remanding large groups of cases in coming months for trial. On Friday, Bard filed a separate motion to toss out claims for punitive damages in those cases, saying that its actions “lack the malice, intent to harm, and outrageous behavior required for exemplary damages.”
Credit: Amanda Bronstad at email@example.com. / National Law Journal