C.R. Bard (NYSE:BCR) yesterday asked the federal judge overseeing thousands of lawsuits brought against it to delay a trial slated for next month, arguing that the judge’s comments during a hearing last month prejudiced the jury pool.
Judge Joseph Goodwin of the U.S. District Court for Southern West Virginia is supervising a multi-district litigation involving thousands of the lawsuits filed over Bard’s pelvic mesh devices for pelvic organ prolapse and stress urinary incontinence.
Last month, Goodwin’s comments urging Bard to settle the mesh lawsuits drew widespread publicity.
"I can’t imagine a corporation facing potentially billions of dollars in verdicts wouldn’t find it advisable to try to achieve a settlement for a much lesser sum," Goodwin said at the Dec. 9 hearing. "I base that billions of dollars business on some of the rather large verdicts that we’ve had.”
Bard and other makers of pelvic mesh products, designed to treat pelvic organ prolapse and stress urinary incontinence, are facing 10s of thousands of lawsuits in state and federal courts. In November a jury in West Virginia awarded 4 women $18.5 million for injuries they said were caused by Boston Scientific‘s (NYSE:BSX) Obtryx device for stress urinary incontinence, including $4 million for "gross negligence." That verdict came a week after a Miami jury awarded $26.7 million to 4 women implanted with the company’s Pinnacle device for pelvic organ prolapse. Those rulings and court losses by other mesh makers ought to spur Bard to settle the more than 12,400 such cases it’s facing, Goodwin said. Bard in October inked a settlement deal for some 500 of the cases that’s reportedly worth about $21 million.
"I find it to be a material fact that 5 different state forums have, on average, returned verdicts of over a million dollars per plaintiff," the judge said. "If I were a stockholder of any of these companies, I would be materially interested in the fact that there have been multiple million-dollar verdicts for individual plaintiffs."
Bard argued yesterday that the widespread coverage of Goodwin’s comments make it impossible to hold a fair trial as scheduled for February.
"Based on reports in the news media and by analysts, potential jurors could readily conclude that the court believes: (i) Bard is liable for plaintiffs’ alleged injuries; (ii) that presumptive liability should expose Bard to billions of dollars in damages; (iii) individual plaintiffs should recover substantial amounts, based upon multiple million-dollar verdicts; and (iv) Bard should settle all MDL cases," the company argued, according to court documents [italics theirs].
"That this is so demonstrates that the jury pool has quite likely been tainted," the company wrote. "Even if the court instructs jurors and potential jurors to ignore the media and avoid internet research, the effect of those instructions is only prospective. It cannot immunize the jury against the prejudicial information its members may have already seen. Only time may dissipate that taint."