Following a $3.6 million verdict in an IVC filter bellwether trial, Bard has filed a motion for a new trial, arguing that the court’s decision was inconsistent.

Bard filed their motion for a new trial on April 23, arguing that plaintiff Sherri B. “utterly failed to present any evidence at the trial on the fundamental premise” of negligent failure to warn.

Bard argues that they are entitled to a new trial because the jury’s verdict was “irreconcilably inconsistent”. The company claimed that the IVC filter bellwether trial was particularly important because “the jury’s inconsistent verdicts threaten to undermine this purpose.”

A bellwether trial is the first one conducted in a consolidation of lawsuits that often occurs in a multidistrict litigation. A multidistrict litigation covers many lawsuits that are almost identical. A bellwether trial allows facts to be established and argued so the court has a firm basis moving forward to other lawsuits, without putting in the same time and effort for every repeated trial. These trials allow plaintiffs, attorneys, and defendants the chance to structure their case and make adjustments as needed.

The IVC filter bellwether trial must sufficiently reflect the contents of the majority of suits involved in the multidistrict litigation. The judge previously decided that Sherri’s case was sufficient and it became the IVC filter bellwether trial.

At age 37, Sherri had the Bard G2 filter implanted into her inferior vena cava, the body’s largest vein. The filter allegedly broke apart in 2009 which caused pieces of the filter to lodge in Sherri’s heart and spine. She underwent open heart surgery to remove the pieces, but several shards allegedly remain in her body and cause complications.

The jury found that Bard was not liable for strict product liability design defect, strict product liability failure to warn, or negligent design, all counts brought forth by Sherri in her lawsuit. However, the jury found the company liable for negligently failing to warn the doctor who implanted the G2 filter about the shattering risks.

The IVC filter bellwether trial granted a $3.6 million award based on the negligent failure to warn claim. The jury awarded $2 million in compensatory damages and $2 million in punitive damages with 80 percent of the liability on Bard and 20 percent of the liability on a radiologist who failed to see that the G2 filter allegedly began to shatter.

Along with their motion for a new trial, Bard filed a motion for judgment as a matter of law. The judgment as a matter of law motion requests that U.S. District Judge David Campbell undo the jury’s previous decision in the IVC filter bellwether trial and enter judgment in Bard’s favor. Bard’s motion for judgment as a matter of law was the primary motion filed, with a new trial only if Judge Campbell does not find judgment of law appropriate.

The IVC Filter Lawsuit is Case No. 2:16-cv-00474 and is part of the IVC Filter MDL, In re: Bard IVC Filters Products Liability Litigation, Case No. 2:15-md-02641, in the U.S. District Court for the District of Arizona.