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Did C.R. Bard Use Restricted Material in Its Transvaginal Mesh Products?

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Women who were injured by C.R. Bard vaginal mesh products and who filed a claim in federal court are awaiting the resolution of those cases in the current mesh multidistrict litigation taking place in the Southern District of West Virginia.

According to a report by Harris Martin, U.S. District Judge Joseph R. Goodwin, who is overseeing the pre-trial proceedings, recently made a ruling in favor of plaintiffs. The order allows their exhibits—including corporate emails concerning the raw material used to make Bard’s mesh products—to remain open and available as evidence.

Material Used in Mesh at Question

According to court documents, Bard filed a motion to seal emails containing information that would allegedly reveal trade secrets and other confidential information. The emails included those sent and received by company Davol Inc.’s vice president of research and advanced technologies, Roger Darois. The messages contained proprietary information, Darois stated, including the company’s methods for obtaining raw polypropylene resin—which is one of the things at issue in these cases.

In an earlier order, West Virginia Magistrate Judge Eifert allowed plaintiffs to question Darois and President Dan LaFever about the use of an allegedly prohibited raw polypropylene resin in Bard’s mesh products. Plaintiffs argue that the manufacturer of this resin issued a Material Safety Data Sheet prohibiting its use in surgeries involving permanent implantation in the body—such as that which occurs with the surgical repair of pelvic organ prolapse and stress urinary incontinence.

At issue is whether Bard purposely concealed their improper use of the resin, with the emails being “highly relevant” to the case, according to the plaintiffs.

Judge Allows Emails

Bard opposed the motion to reopen discovery on this matter, arguing that discovery of Darois was already completed on December 19th, 2012. Judge Eifert disagreed, noting the emails were buried in over 560,000 pages of documents, making their detection difficult.

“Given the size of the production and the fact that the emails were not included in Mr. Darois’s custodial file,” Judge Eifert wrote, “Plaintiff’s failure to locate them prior to the December 19 deposition is entirely understandable.” She further found that the emails were relevant to the plaintiff’s claims.

Bard Fails to Provide Justification

In moving to try to seal the email exhibits, Bard also argued that the public disclosure of their arrangements with suppliers of mesh could endanger their access to raw materials. Plaintiffs countered that the defendants were only trying to keep the public from finding out that it sold materials not meant to be permanently implanted in humans.

“Bard…has not provided sufficient justification as to why the identity of its supplier and ‘arrangements’ it made for obtaining the raw polypropylene resin are trade secrets,” Judge Goodwin wrote.

The judge is also looking over other documents that Bard heavily redacted. “I am not convinced that the documents have been only minimally redacted where absolutely necessary,” he said.