The case has been the talk of Rhode Island legal circles all summer: Corporate giant C. R. Bard Inc. has set aside $184 million to settle 2,600 lawsuits, the result of a legal battle waged in the federal courthouse in Providence.
For the past few years, a procedure known as multidistrict litigation has been unfolding in the court. It involves more than 3,600 civil suits filed in jurisdictions around the country, all naming the same defendant: Davol, a Warwick-based Bard subsidiary that manufactured a medical device known as the Kugel Mesh hernia patch.
A few years ago, surgeons were implanting the patch in thousands of patients to hold injured muscles in place. Since that time, however, some patients found their injuries growing worse, allegedly the result of broken or buckled patch devices. Those complaints led to the wave of lawsuits.
Handling each of those cases individually would have clogged court dockets, delayed settlements for years, and forced lawyers to depose the same witnesses over and over again. By using multidistrict litigation – or MDL – the federal court system has avoided all those headaches. Two years ago a panel of federal judges pooled those 3,600 cases and sent every one of them to the U.S. District Court for Rhode Island, where Judge Mary Lisi has heard all pre-trial discovery motions.
“It helps with management, and it helps with efficiency,” said Providence attorney John Tarantino of Adler Pollock & Sheehan. “But these cases can still be very expensive.”
The settlement process will take several months to finalize. Bard made the $184 million figure public in a statement to shareholders at the end of the second quarter, and it has since been trumpeted in a press release from Motley Rice, a national firm representing more than a thousand of the plaintiffs. That amount, however, was set aside for just two-thirds of the total cases. A thousand more have yet to reach the point where a settlement is imminent.
The federal court system has been using the MDL process to speed legal proceedings for the past four decades, but never before has one landed in Providence.
The Davol case represents another feather in his cap; he’s one of three lawyers Lisi appointed as lead counsel for plaintiffs in the MDL.
“This demonstrates that in Rhode Island, the federal bench is equipped to deal with national problems, and can do so effectively,” Migliori said.
Other observers note that few Rhode Island firms have the manpower or the resources to play a lead role a typical MDL requires.
“These proceedings can be very time consuming,” said Tarantino, who has worked on MDLs in a half-dozen jurisdictions, though not as lead counsel.
“I don’t think we’ll ever see a lot of them in Rhode Island, though the court has certainly shown that we have the ability to manage one. … It’s not the kind of litigation where a one- or two-person firm could take on the load, but in many cases multiple firms will work together, and some use contract lawyers and outside vendors, such as document production and review companies.”
Though the MDL process is meant to streamline legal proceedings, it still generates an enormous amount of paperwork. And for plaintiffs’ lawyers, such litigation is often a huge gamble. A case can drag on for years with huge costs and no guarantee of a payoff. The Davol MDL, for example, has involved 60 depositions and seven million pages of documents. But a firm that represents hundreds or thousands of plaintiffs could could reap millions of dollars in fees.
“Just to get through that amount of material requires substantial resources,” said Migliori.
An MDL involves multiple claims filed against the same defendant or defendants. The plaintiffs all make similar allegations involving a product or a single event that has affected many people, perhaps a faulty medical device, or a medication that causes unintended results, or an aviation disaster.
When that work is finished, almost every case will be sent back to the court where it was originally filed. If there’s a trial, it would most likely take place there. In most cases, however, that never happens, because by then both parties usually have enough information to reach a settlement.
“It can be an effective way to get rulings on a number of issues that can help parties determine the strengths or weaknesses of a case,” Tarantino said. “A party may have an unrealistic view of their case. As they become better educated they can make better decisions as to whether their case should be settled or tried.”
Sometimes the judge handling the MDL will elect to try one case, or several, to further guide lawyers in their settlement negotiations. In the Davol case, Judge Lisi selected two plaintiffs for so-called “bellwether trials.”
In Thorpe versus Davol, the plaintiff suffered a perforated bowel when the device broke; the jury awarded $1.5 million. In Whitfield versus Davol, experts testified the device folded over, which caused suffering to the patient. The jury found the design was negligent, but they said the victim’s injuries were not necessarily related to the device. They awarded nothing.
“The bellwether trials are a good measuring stick as to how lawyers should evaluate their cases, because they expose strengths and weaknesses,” added Ernest Cory, an Alabama lawyer who spent much of the past year in Providence as second lead counsel for plaintiffs in the Davol case.
At this point, Lisi is preparing to schedule another round of trials with the goal of hastening settlements in the remaining cases. It’s possible, though, that they will be resolved before that happens.
A spokesman for Bard, based in New Jersey, declined to comment last week. •
