As of 2023, Bard faces over 19,000 claims in Federal Court related to failures and complications arising from the use of their hernia mesh products. Due to the overwhelming number of cases, a Federal Judge established a multidistrict litigation (MDL) to streamline the legal process.
MDLs are beneficial when numerous plaintiffs are suing the same defendant for similar issues, as they save time and money for all parties involved. By consolidating cases in a single location, MDLs enable defendants to settle multiple cases simultaneously, resulting in significant time and cost savings for plaintiffs, defendants, and the courts.
However, in early 2023, the federal judge overseeing the Bard MDL warned that if the company cannot find a way to settle these claims, the MDL will be dissolved, and the case will be returned to individual states, removing its MDL status. In this scenario, Bard would face 19,000 separate lawsuits across the country.
Bard has a history of lawsuits involving its hernia mesh products, having settled over 2,600 Kugel mesh lawsuits for $184 million in 2011. While this may seem like a substantial sum, the hernia mesh industry generates more than $48 billion annually in the United States.
Following the conclusion of the initial "bellwether" cases, which were postponed from May 2023 to October 2023, Bard is expected to begin settling the remaining cases. If not, the company will be entangled in legal battles in every state for years, a result neither Bard nor the courts would want.
Expected Settlement Amounts for Plaintiffs
It is difficult to predict the exact settlement amount for each plaintiff, but it is likely that claimants will be grouped based on the damages they seek. According to Lawsuit-Information-Center.com, the average settlement payout for Bard hernia mesh plaintiffs could be around $80,000.
Individual settlement amounts will vary based on a tier system that awards more compensation to those with severe injuries. For instance, plaintiffs with the most severe injuries might receive an average settlement between $110,000 and $130,000, while those with minor complications and no permanent injuries could receive $50,000 to $60,000. Plaintiffs in the middle tier might receive $75,000 to $85,000.
Bard, having previously settled mesh cases with an average per-person payout of $70,000, is familiar with this range, making a similar figure more palatable. Taking into account recent verdicts, future settlement amounts are likely to be slightly higher.
Timeline of Hernia Mesh Lawsuits
Hernia mesh lawsuits can be lengthy, particularly when there are high stakes and significant financial implications for all parties. However, regarding the Bard hernia mesh litigation, a Settlement Master was appointed to the MDL in September 2022, which often indicates that a settlement is imminent. Despite the postponement of some bellwether cases from May 2023 to October, it remains possible that numerous settlements will be reached by the end of 2023.
What are the Plaintiffs Alleging that Bard Did Wrong?
A critical claim in the Bard hernia mesh lawsuits is that Bard knowingly used a plastic resin in its mesh products that was deemed unsafe for the intended application. Bard allegedly utilized a plastic called Pro-fax 6523, manufactured by LyondellBasell, in all of its hernia mesh products because it was the most affordable material that met their requirements. However, LyondellBasell had explicitly deemed Pro-fax 6523 unsuitable for permanent implantation within the human body and had expressly forbidden its use in hernia mesh products.
The plaintiffs argue that Bard's decision to use the Pro-fax 6523 plastic, despite the manufacturer's warnings, led to the complications and injuries experienced by the individuals who received the hernia mesh implants.
Common Hernia Mesh Complications
Hernia mesh complications can cause severe health issues and may necessitate additional surgery. These complications can be divided into operative and post-operative categories. Operative complications typically result from tissue damage during surgery, while post-operative complications involve hernia recurrence, infection, or issues with the mesh itself. Common hernia mesh complications include:
Adhesion (scar-like tissue causing tissues that should not be connected to stick together)
Rejection (immune response to the mesh)
Bowel obstruction (blockage of the large or small intestine)
Bowel perforation (a hole in neighboring tissues or organs)
Bleeding, blood in urine
Fistulae (abnormal connections between two body parts)
Chronic or acute pain
A study by Robinson, Clarke, Shoen, and Walsh analyzed 252 adverse event reports related to hernia repair using surgical mesh. Reported adverse events included infection (42%, 107 reports), mechanical failure (18%, 46 reports), pain (9%, 23 reports), reaction (8%, 20 reports), intestinal complications (7%, 18 reports), adhesions (6%, 14 reports), seroma (4%, 9 reports), erosion (2%, 6 reports), and other (4%, 9 reports). Death occurred in 2% of cases (5 cases). While some discomfort and tenderness after hernia mesh surgery are normal, persistent or stabbing pain, swelling, or heat sensations around the surgical site may indicate a problem. Blood tests, CT scans, and X-rays can help diagnose potential hernia mesh complications.
Are Bard Hernia Mesh Products Still Being Sold and Implanted?
It may come as a surprise to learn that despite the ongoing lawsuits, Bard hernia mesh products continue to be used in 2023 for hernia repairs. Bard's current product line can be found on their website at https://www.bd.com/en-us/products-and-solutions/products/product-families/bard-soft-mesh-pre-shaped?gclid=EAIaIQobChMIpoTJ0tPA_QIVniStBh3CAg-UEAAYASAAEgIbLPD_BwE. It is important to note that being involved in major lawsuits does not necessarily mean a company's products are removed from the market. In 2017, Becton, Dickinson and Company acquired Bard for $24 billion. Large corporations such as this are not typically inclined to cease product sales due to lawsuits. As a result, Bard hernia mesh products remain available and in use for hernia repair surgeries.
At Phillips & Associates, we have extension experience with product liability matters, including the Bard hernia mesh litigation. If you have experienced complications involving a Bard hernia mesh, please contact our office for a free consultation regarding your case.