In recent years, C.R. Bard has been on the receiving end of thousands of product liability lawsuits related to their inferior vena cava (IVC) filter devices. More recently, Bard has filed Q-10 reports with the Securities and Exchange Commission (SEC) in which they indicate the intention to settle many of the lawsuits related to their IVC product line. In the same Q-10 disclosures, Bard stated that certain claims about their IVC filters had been consolidated in a multidistrict litigation (MDL) in Arizona.
Bard’s willingness to quickly settle claims is highly unusual for cases of this nature, and it raises questions regarding Bard’s intentions. It appears as if Bard is attempting to prevent litigation from progressing, perhaps with the aim of keeping certain items of evidence from being exposed during discovery. Depending on the type of information that would be revealed in discovery, the potential damage to Bard’s image and stock price may outweigh the cost of settling the claims.
This explanation is supported by the fact that Bard has already filed motions to suppress evidence, including The Lehman Report, the Bard Media Plan, adverse event reports, communications between Bard and a public relations firm hired to mitigate the negative publicity associated with these lawsuits, communications between Bard and the FDA, and certain promotional materials produced by Bard.
Bard moved to suppress The Lehmann Report based on it being protected work product. However, NBC News and Mass Tort Nexus investigators were able to easily obtain copies of it. Issued in 2004, the report was written by John Lehmann, MD. Dr. Lehmann was hired by Bard to conduct research regarding the safety and efficacy of Bard’s products, including IVC filter devices. After his research concluded, Dr. Lehmann’s report did not support the originally purported safety or efficacy of Bard’s products.
In addition to The Lehmann Report, Mass Tort Nexus investigators have been able to locate copies of most of the documents that Bard has attempted to conceal from the public. Bard’s argument that The Lehmann Report and other documents should be suppressed due to their statuses as protected work products may be countered by plaintiffs’ counsel on the simple fact that they have been obtained without difficulty.
Prior to the Bard MDL, plaintiff attorneys Raymond Lopez and Julia Reed Zinc went up against Bard in the Arizona case Phillips v. Bard. Bard ultimately decided to settle that case before taking it to a jury, but not before Lopez and Zinc unveiled several truths through the questioning of Bard insiders. Similar to the Bard MDL, the nature of the documents that would have been revealed in discovery provide a possible explanation for Bard’s decision to settle.
Raymond Lopez and Julia Reed Zinc hold leadership positions in the Bard MDL, while Richard North, who served as Bard’s defense attorney in Phillips v. Bard, will lead the defense team in the MDL. Bard has announced on its website the discontinuation of the Meridian®, Eclipse®, G2X®, G2® and Recovery® filters.