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.
Goodwin denied the bulk of the motion, ordering the plaintiffs to cover court costs but denying Bard’s request for the fees its attorneys charged, according to court documents.
"Bard asks for an award of $14,096.42 to cover various costs, including fees for obtaining deposition transcripts and medical records. The plaintiffs do not dispute the reasonableness of these costs. The plaintiffs are therefore ordered to pay to Bard $14,096.42," Goodwin wrote. "I find that Bard has failed to show exceptional circumstances justifying an award of attorneys’ fees. Although voluntary dismissal may have been unexpected, Bard cannot argue that it is disappointed with the outcome of this case; Bard did not have to pay a settlement or expend resources at trial. Additionally, the prejudicial dismissal means that Bard does not face the risk of relitigation of these claims. Bard’s motion for attorneys’ fees is therefore denied."
In September 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.