C.R. Bard (NYSE:BCR) wants to recoup its legal costs from a bellwether lawsuit over its Avaulta pelvic mesh that was dismissed last month, asking a federal judge to order the plaintiffs to pony up some $14,000.
Judge Joseph Goodwin of the U.S. District Court for Southern Western Virginia dismissed Rizzo et al v. C. R. Bard with prejudice Sept. 20, 25 days before it was slated to go before a jury. The case is 1 of the bellwether lawsuits being tried in the multi-district litigation over the Avaulta pelvic mesh product.
The dismissal prompted Bard to ask Goodwin to award "the attorneys’ fees and costs that it unnecessarily incurred in preparing this case for trial prior to plaintiffs’ last-minute voluntary dismissal of their case," according to court documents.
"An award of costs is appropriate because Bard is the prevailing party in this lawsuit. An award of reasonable attorneys’ fees is appropriate because plaintiffs’ approach to the dismissal of this bellwether case and their belated, unwarranted dismissal caused Bard to incur unnecessary expenses and undermined the bellwether process," according to the documents.
But the plaintiffs, Linda and Ronald Rizzo, countered that Bard is not the prevailing party and is not entitled to any relief.
"Prior to the scheduled start date for the Rizzo trial, Bard elected to voluntarily settle the preceding bellwether case in which a jury had already been selected and both plaintiffs’ and defense counsel, the plaintiffs and several of plaintiffs’ experts were already present in West Virginia and prepared for trial," according to the documents. "Bard certainly does not contend that the plaintiffs in the preceding bellwether case are entitled to recover their costs. Therefore, it is both self-contradictory and unfair for Bard to contend that it should be awarded its costs as the ‘prevailing party’ when it has achieved the very same outcome as it did voluntarily in the immediately preceding bellwether case."
Last month the Murray Hill, N.J.-based medical device company settled another Avaulta case in New Jersey. Bard and a raft of medical device companies, including Boston Scientific (NYSE:BSX), Endo Health Solutions (NSDQ:ENDP), Cook Medical and Johnson & Johnson‘s (NYSE:JNJ) Ethicon subsidiary, are facing thousands of federal and state lawsuits over their respective mesh offerings.
In August, Bard settled the 2nd bellwether case in the Avaulta multidistrict litigation that’s being adjudicated in federal court in West Virginia. The medical device company and Wanda Queen agreed to settle the case for an undisclosed amount the morning before it was set to go before a jury.
The 1st bellwether case against Bard originally went to trial earlier this summer, but was halted in July after Goodwin declared a mistrial, ruling that a witness broke his ban on mentioning Bard’s 2012 recall of the Avaulta mesh.
The jury in the 11-day retrial of the case, begun July 29, awarded $250,000 in compensatory damages and $1.75 million in punitive damages to plaintiff Donna Cisson.
Costs associated with lawsuits filed over Avaulta hit Bard’s earnings for the 2nd consecutive quarter, according to its Q2 earnings report. The company took a $292.4 million charge to cover its expected liabilities for the lawsuits, on top of a $26 million charge booked during the 1st quarter.
Endo Health subsidiary American Medical Systems agreed in June to pay $54 million to settle personal injury lawsuits filed over its pelvic mesh products.
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