The first bellwether trial in MDL 3081 returned a mixed result that Bard will call a win and plaintiffs will read as something closer to a hold. The defense prevailed on the failure-to-warn, failure-to-instruct, and consumer fraud claims. But on the two claims that matter most for the broader MDL — defective design and unlawful trade practices — the jury could not agree, and the trial ended in a hung jury on those counts. The plaintiff will get another shot at the design defect theory, which is the central allegation across the entire docket.
What the Jury Actually Decided
The case was an infection case at its core. Bard's defense leaned heavily on user error, arguing that the plaintiff and the plaintiff's significant other — who was helping operate the device at home — had not followed the training protocol properly, and that any failure of the device was a failure of use rather than design. The jury accepted that framing on the warning and instruction claims. Bard's labeling and training materials, in the jury's view, were not the cause of the harm.
On design defect, the jury split. That is the more important fact, because design defect is the through-line of the MDL. The catheter fracture cases, the polyurethane degradation cases, the embolization cases — they all rest on the theory that the Power Port was not designed safely for long-term implantation. A hung jury on that claim means the central theory remains live for the next trial. It also means jurors heard the design defect evidence and did not collectively reject it.
The Evidence That Came In
Two pieces of trial evidence are worth flagging because they will resurface in every future bellwether.
First, testimony established that Bard had internal data showing its port catheters carried a roughly 14 percent infection rate. For an implanted device used predominantly in oncology patients, that is not a small number, and the duration over which the company was on notice of it strengthens the failure-to-monitor and design-defect theories going forward.
Second, Bard's own employees testified that they had recommended design updates to the Power Port. That is precisely the kind of internal-knowledge testimony that drives design-defect verdicts in mass tort cases — it shows that the company had identified the problem internally and had options on the table. Reports from the courtroom also indicate that jurors, in informal comments, said they would have answered yes had they been asked directly whether the Power Port could have been made safer.
None of that translates into a verdict on its own. But it does mean the design defect record is now developed, on the trial transcript, and available to inform the next bellwethers.
What's Next
The second case in the bellwether queue was dismissed before trial, so the next bellwether will not go up until the end of summer. Selection of that case takes on added weight after this verdict. Plaintiff steering committee leadership will want a case that puts design defect cleanly in front of the jury without the user-error overlay that complicated the first trial. An ideal next bellwether is a catheter-fracture-and-embolization case with imaging confirmation and minimal opportunity for the defense to argue causation through misuse.
The third bellwether is also expected to go this year, and the trials are running short — roughly two weeks each. Two more verdicts before year-end is realistic, and those results will define the settlement conversation that follows.
Where the MDL Stands
A little over 3,500 cases are currently pending in MDL 3081 in the District of Arizona before Judge David Campbell, who also presided over the Bard IVC filter MDL — a docket in which plaintiffs ultimately reached meaningful resolution. The Power Port docket is smaller than the trajectory many firms anticipated at MDL formation, and recent filings have slowed. Whether the docket expands again depends on the next two bellwether verdicts.
Bard remains a sophisticated and well-resourced defendant. Settlement pressure on Bard does not come from filings alone — it comes from the verdict trajectory and the comparative cost of trial exposure versus resolution. A plaintiff verdict on design defect in the next bellwether would materially shift the calculus.
The Takeaway
The first bellwether was not the clean defense win the headlines may suggest. The decided claims went to Bard, but the central design defect theory survived to be tried again, and the trial record now includes Bard's internal infection data, employee testimony on recommended design updates, and reported juror sentiment that the device could have been made safer.
Jurors splitting on design defect while finding for the defense on failure to warn is an unusual outcome, and it underlines what most experienced trial lawyers already know: this kind of verdict mix is the rule, not the exception, in implanted device litigation.
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