Bard Signals Settlement of IVC Filter Lawsuit, while Struggling to Suppress Evidence

03/30/2016 – Plagued with mounting allegations and evidence of wronging related to various IVC Filter Devices C. R. Bard, Inc. made an announcement in recent 10q filings with the SEC that we interpret as Bard announcing an Intent to settle many, if not all lawsuits, related to certain Inferior Vena cava (IVC) Filters.

Bard IVC Filter Lawsuit Settlement News
Bard IVC Filter Lawsuit Settlement News

In the same 10q disclosures in which Bard informed stockholders that certain complaints over their IVC Filter product line had been consolidated in a Multidistrict Litigation in Arizona, Bard also inserted language indicating they intended to settle complaints related to their IVC line, adding that they would fight any claim that did not settle.  We found the last comment interesting as we are unsure what other alternative Bard would have other than to fight claims that did not settle.

Although the indication of a desire to settle claims at such an early stage of Bard IVC Litigation did not surprise many of those following the litigation, it is safe to say that such an early stage settlement indication is extremely unusual. It is more common for defendants in case like the Bard Litigation to at least provide some pretense of defense to their stockholders early such a litigation.

Bard Has a Great Deal They Seem to Want to Hide

One possible explanation for Bards indication of early settlement may stem from Bard exectives concluding that the cost of paying claims will be less damaging to their image and stock price than what may come out in discovery if the litigation goes to forward.

Bard has filed motions to suppress a great deal of evidence, claiming that the evidence is protected work product or shielded from discovery for other reasons.

Some of the evidence Bard has moved to suppress include:

1: The Lehmann Report.  The Lehmann Report was issued by John Lehmann MD in 2004. It appears that Dr. Lehmann was hired by Bard to conduct research ostensibly intended to demonstrate the Safety and Effectiveness of certain Bard IVC Filter Products. What Dr. Lehmann ultimately reported in what is now referred to as the Lehmann report was not what Bard had hoped for.  The report did not support the Safety and Effectiveness of Bard Products in the manner Bard undoubtedly hoped.

Plaintiffs’ Counsel seeks to have The Lehman Report entered into evidence, Bard Counsel seeks to suppress the Lehmann Report as protected work product.

One argument Plaintiffs lawyers have to counter defense arguments related to the Lehmann report being Confidential and Privilege work product arises from the fact that Bard did not diligently protect this supposedly Confidential Work Product.

NBC News was easily able to obtain a copy of The Lehmann report which it featured in a series of reports related to Bards beleaguered IVC products.  Mass Tort Nexus investigators were also able to obtain a copy of The Lehmann Report from public sources with little difficulty. Arguably, Bard did not meet the necessary burden of keeping its confidential document, confidential.

Other documents Bard has moved to suppress include:

  1. Certain Bard Promotional Material.
  2. Bard Media Plan Related to how the company would deal with the publicity from the NBC Reports and other negative attention it was attracting related to their IVC product line.
  3. Communications between Bard and a Public Relations firm it hired to help with the fallout from negative publicity related to its IVC product line.
  4. Certain Adverse Event Reports related to its IVC Product Line.
  5. Certain Communications with the FDA related to its IVC product line.

Again Plaintiffs’ counsel may argue that Bard has failed in their diligence to maintain allegedly confidential documents confidential as both NBC news was able to obtain many of the documents Bard wishes to suppress. Additionally, Mass Tort Nexus was able to obtain copies of the majority of the documents Bard wishes to suppress from public sources.

Copies of many of the documents Bard wishes to suppress may be found at the following link:

Documents Bard Wishes to Suppress

Another factor which may contribute to Bard desiring to end the IVC Filter Litigation sooner rather than later stems from the shellacking they received at the hands of plaintiff attorneys Raymond Lopez and Julia Reed Zinc in a case tried in Arizona before the Bard MDL was formed.

These two capable attorneys took on the giant medical device manufacturer in Phillips v Bard an Arizona case.  The documents and transcripts from that case clearly show why Bard decided to settle that case before it went to a jury.  Raymond and Julia deftly pressed Bard insiders, who appeared to have been coached by a leading member of the actor’s guild, bringing to light truths that Bard would likely have preferred remain in the dark.

See the documents and Transcripts from Philips v. Bard.

Ramon Lopez is now co-lead counsel in the Bard MDL, Julia Reed Zinc also serves in a Plaintiffs Leadership positon. Richard North, Bards defense attorney in Phillips v Bard heads up Bards defense team in the MDL.

Incidentally, Bard now announces the following on its website:

Bard no longer manufactures or sells the Meridian®, Eclipse®, G2X®, G2®, and Recovery Filters.

To stay up to date on all of the developments in the Bard MDL as other ongoing MDLs, subscribe to the Mass Tort Nexus Professional Site at this link:  Sign Up

 

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