The fourth and final bellwether trial in C. R. Bard’s ongoing transvaginal mesh MDL was put on hold last week after an expert witness was unexpectedly called away. As you may well know, Bard is facing claims from thousands of women that its mesh product caused them injury. Bellwether trials – chosen from the thousands of cases consolidated in West Virginia – are intended to reflect the likely outcome of the litigation, and have so far had mixed results. While the first case saw the jury award a $2 million settlement in the plaintiff’s favor and the second trial reached an undisclosed settlement, the third was dismissed due to complications with the expert witness. Bard hasn’t won a case yet – but it’s certainly not giving up.
Continuing without Dr. Ostergard would grant insurmountable prejudice to the plaintiff.
The most recent delay is not something anyone could have seen coming. The fourth trial, which was set to begin January 10, was put on hold after the plaintiff’s key witness had to attend to his wife in hospital. Judge Joseph Goodwin has now approved an unopposed motion to pause the trial indefinitely. The motion was brought by plaintiff Carolyn Jones after Dr. Donald R. Ostergard, the gynecologist she had hoped to testify on her behalf to help support her design defect argument, gave notice just two days before trial that he could not attend for at least two weeks.
While acknowledging that the delay was inconvenient, continuing without Dr. Ostergard would grant “insurmountable prejudice” to the plaintiff, who would be forced to continue without “her most critical witness,” the motion said.
Dr. Ostergard has been identified by Jones’ lawyers as the only physician able to establish design defect and causation (a link between Bard’s mesh and Jones’ injuries.) Among the many complaints filed by women implanted with the device, the most common is that the mesh erodes and causes pain, discomfort, scarring, bleeding, and often requires corrective surgery to remove the device. In some cases, it’s also alleged that removal is in fact impossible, leading to further long-term problems.
Records show that Dr. Ostergard will testify to the court that the polypropylene used in Bard’s mesh is prone to shrinking and erosion. Bard has already failed in an attempt to prove Dr. Ostergard is unqualified to provide such testimony, with Judge Goodwin ruling that Bard lacked standing to preemptively bar the doctor’s testimony. The company will, however, be able to cross-examine him – something you can be sure they will do with a great deal of vigor.
Bard has already insisted that Dr. Ostergard ignored Ms. Jones’ medical history, which included diabetes, obesity, and smoking, when placing blame for his patient’s injuries on the mesh product – and the company no doubt sees this as a prime target for its attacks. When will this happen, though? That remains to be seen. The indefinite hold will, no doubt, only be removed when Dr. Ostergard is able to testify, but his wife’s hospitalization has quite rightly caused the doctor’s focus to shift elsewhere for now.