The U.S. District Court for the District of Nevada has denied a motion by C. R. Bard, Inc., to seal court files relating to a Bard inferior vena cava (IVC) filter lawsuit.
Although Bard has settled a few IVC filter lawsuits, it has also attempted to win at trial. In the second Bard lawsuit to go to trial, Lopez McHugh attorneys, including partner Ramon Rossi Lopez, put on extensive evidence of Bard’s alleged misconduct. Three weeks into trial, Bard settled the case and then asked that the U.S. District Court for the District of Nevada seal certain trial exhibits and portions of transcripts.
Bard argued that three types of material should be sealed: “(1) product design and testing, including confidential communications between Defendants and the FDA; (2) sales and marketing information; and (3) Defendant’s internal quality control procedures, complaint and adverse event responses, reporting and handling, device tracking procedures, and corrective action procedures.”
Plaintiff argued, however, that what Bard was really requesting was an order that all evidence regarding what Bard knew about the risks of the Recovery Filter and Bard’s efforts to conceal, misrepresent and downplay those risks be held secret from the public.
On June 1, 2015, the court entered an order denying Bard’s request, stating that the records attached to the motion to seal did not satisfy the “compelling reasons” test. In other words, Bard failed to prove that its reasons for sealing the documents outweighed the public interest in accessing the documents. The court concluded that the only harm that could be avoided by sealing the documents was the precipitation of more IVC filter lawsuits against Bard, which it found to be insufficient reason for sealing the records.
The District of Nevada court’s denial of Bard’s motion marks an important victory for consumers who have been implanted with Bard IVC filter. Until now, Bard has sought and obtained numerous orders preventing plaintiffs’ attorneys from disclosing any information uncovered during litigation to the public or FDA.
Now that Bard’s motion to seal has been denied, Lopez McHugh is able to reveal information that Bard knew the Recovery Filter was substantially more dangerous than other IVC filters and yet knowingly downplayed and concealed this information.
Experts estimate that over 200,000 Bard IVC filters have been implanted in patients in the United States. These filters include levels of spoke-like struts designed to anchor the device in the inferior vena cava and limit blood clots from traveling and gathering throughout the body, thereby preventing strokes and other life-threatening events. Unfortunately, Bard IVC filters have proven to be potentially more deadly than the harm they are intended to prevent. Various studies have found that pieces of Bard IVC filters, and sometimes entire devices, are prone to break away and become lodged in vital organs such as the heart and lungs. Additionally, the filters have been the subject of more than one FDA safety alert; the most recent of which recommends that the devices be removed from patients as soon as the risk of pulmonary embolism has faded.
