Bard Fails to Get Internal Documents Excluded from Vaginal Mesh Trial

The attempt by C.R. Bard Inc. to exclude an employee’s proposed changes to vaginal mesh products as evidence in a bellwether trial over injuries allegedly caused by mesh has failed. U.S. District Judge Joseph Goodwin found that the documents were relevant on the Plaintiff’s design defect claim. The ruling came in a suit brought by Carolyn Jones in the multidistrict litigation (MDL) over Bard’s Avaulta pelvic support devices. The case, filed in a West Virginia federal court, was scheduled to go to trial January 10.

 Judge Goodwin denied Bard’s motion in limine to exclude intracompany memoranda from Bobby Orr, a Bard employee. He was head of the company’s advanced surgical concepts division when he wrote the documents in 2008 and 2009. In the first memorandum, Orr wrote that mesh products are linked to adverse events and proposed ways to improve their design. Bard argued that the documents were not relevant to the Plaintiff’s design defect claim, since under Mississippi law, Plaintiffs bringing the claim must show a defect existed at the time the product left a company’s control Bard said Orr had written the memorandums after Ms. Jones’ mesh was manufactured and implanted.

Judge Goodwin ruled, that by Bard’s own admission, it design defect claim touches on whether a company knew or should have known of a risk and whether the product had a feasible alternative design. He said that all of the scientific literature referenced by Orr was published before Bard began selling the mesh implanted in Ms. Jones. Judge Goodwin wrote in his order:

The Pre-launch, peer-reviewed body of literature referenced by Mr. Orr, and his comments respecting it, may thus relate to what Bard should have known prior to launch and the feasibility of a then-safer alternative.

Under Judge Goodwin’s ruling, parts of the documents may be admitted into evidence, depending on “the foundation laid at trial and the specific portions of the Orr memoranda sought to be introduced.” The judge also rejected Bard’s attempts to exclude the memoranda on two other grounds, including a prohibition on evidence of measures that, had they occurred before an injury, would have made the injury less likely. Judge Goodwin said on that issue:

The Orr memoranda are not, in their entirety, devoted to subsequent remedial measures. They include an analysis of Bard’s existing products. That portion of the memoranda, at least, is not within the contemplation of the remedial-measure prohibition.

Bard also contended that the evidential value of the memorandums was outweighed by the prejudice they would cause the company if admitted. But Judge Goodwin said that Bard had not shown how the documents would prejudice it to an unfair degree. The Jones case is the fourth-scheduled bellwether in the federal litigation. The first bellwether resulted in a $2 million damages award against Bard in August. The medical device maker settled the second bellwether on the first day of trial.

The Plaintiffs in the third-scheduled bellwether dismissed their suit in September, weeks before a trial was supposed to begin. Ms. Jones is represented in her case by Henry Garrard, Gary Blasingame, James Matthews, Andrew Hill and Josh Wages, who are with Blasingame Burch Garrard Ashley, a firm located in Athens, Georgia. This important case will be closely monitored.