Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—MEDICAL DEVICES—D. Ariz.: Bard loses summary judgment bid in bellwether PowerPort catheter case, (Jul 31, 2026)

By Patricia K. Ruiz, J.D.

The court found factual disputes on defect, warning, fraud, unjust enrichment, and punitive damages claims.

The U.S. District Court for the District of Arizona denied a motion for summary judgment by Becton Dickinson and Co., C.R. Bard Inc., Bard Access Systems Inc., and Bard Peripheral Vascular Inc. (Bard, collectively) allowing a New Mexico plaintiff’s remaining claims to proceed to an August 2026 trial. The court found genuine disputes of material fact regarding allegations that a Bard PowerPort catheter was defectively designed and manufactured, inadequately labeled, and accompanied by misrepresentations and concealment of risk information. The ruling also leaves intact claims for unjust enrichment and punitive damages. The case is one of several bellwether actions selected from the multidistrict litigation involving thousands of personal injury claims related to implanted port catheters (Divelbliss v. Becton Dickinson and Company, No. 2:23-md-03081-DGC (D. Ariz. July 22, 2026)).

Background. The patient received a Bard PowerPort with a Groshong silicone catheter in July 2017 to facilitate intravenous immunoglobulin infusions. The catheter fractured in December 2019, and a fragment embolized to the right atrium of her heart before being removed. She alleges the device was defectively designed because the silicone catheter material was weak and prone to flex fatigue and because barium sulfate used in the catheter degraded its mechanical integrity, increasing fracture risk.

Design defect claims. Addressing strict-liability and negligent design-defect claims, the court rejected Bard's argument that the PowerPort qualified as an "unavoidably unsafe product" under New Mexico law and therefore could not support liability. The court said the relevant New Mexico jury instruction applies only where a product cannot be made safe for its intended use and where the injury-producing risk arises from the product's generic condition rather than alleged deficiencies in design, manufacturing or labeling. The court noted that the patient had presented evidence from which a jury could conclude the risk arose from inadequate design, manufacturing, and labeling.

Risk-benefit analysis. The court declined to enter summary judgment based on Bard's contention that the plaintiff lacked evidence showing the product's risks outweighed its benefits. The order stated that New Mexico's seven-factor risk-benefit analysis does not require a plaintiff to satisfy a mandatory checklist and that questions concerning unreasonable risk are generally for the jury. The court further noted that plaintiff experts had identified alternative catheter designs and products that allegedly would reduce fracture risk.

Failure-to-warn claims. On failure-to-warn claims, the court rejected Bard's assertion that the PowerPort's instructions for use were adequate as a matter of law. Although the instructions warned of catheter fracture and listed cardiac complications including arrhythmia, the plaintiff presented evidence that the warnings did not disclose the severity and frequency of fracture risks or identify factors allegedly increasing those risks, including barium sulfate, weak silicone, flex fatigue and subclavian placement. The court concluded that the evidence created a factual dispute regarding the adequacy of the warnings.

Learned intermediary doctrine. The court likewise found unresolved factual issues concerning the learned intermediary doctrine. Bard argued that implanting physician Dr. Gregory Richardson already knew the relevant risks and would not have altered his treatment decision even if additional warnings had been provided. The court said the record could support a finding that Richardson possessed only general knowledge of implanted-port risks and was unaware of the specific risks the plaintiff claims Bard failed to disclose. The court also cited testimony that Richardson would have considered information regarding allegedly more fracture-resistant alternatives and would not implant a device he was told was unsafe.

Manufacturing defect claims. The court denied summary judgment on manufacturing-defect claims after finding evidence from which a jury could conclude the catheter departed from its intended design. The plaintiff pointed to Bard documents indicating barium sulfate should be evenly distributed throughout the catheter and expert testimony describing nonhomogeneous dispersion of the substance during testing.

Misrepresentation claims. The order preserved negligent and fraudulent misrepresentation claims. The court said the plaintiff had presented evidence that Bard's instructions for use allegedly misrepresented the biocompatibility of catheter materials and the rarity and preventability of catheter fractures. The court further found evidence that Richardson read and relied on the instructions and expected the information they contained to be accurate.

Fraudulent concealment claim. As to fraudulent concealment, the court said the plaintiff offered evidence that the instructions omitted information concerning flex fatigue, silicone weakness and barium sulfate separation as alleged contributors to catheter fractures. The court noted that Bard did not specifically address those alleged omissions or the elements of the concealment claim in its motion.

Unjust enrichment claim. The court refused to dismiss the unjust-enrichment claim, finding that New Mexico law permits a plaintiff to plead such an equitable theory in the alternative and does not require contractual privity between the parties.

Punitive damages. Finally, the court held that the plaintiff had presented sufficient evidence to allow a jury to consider punitive damages. According to the order, the plaintiff submitted evidence that Bard knew of fracture risks associated with its port catheters, understood alleged fracture mechanisms, and nevertheless failed to adequately address those risks while understating complication rates and concealing information. The court noted that compliance with FDA regulations may be relevant to punitive damages but is not dispositive under New Mexico law.

The case is No. 2:23-md-03081-DGC.

Judge: Campbell, D.

Attorneys: Brandon D. Henry (Wagstaff & Cartmell LLP) for Kimberly A. Divelbliss. Adam J. Hegler (Nelson Mullins Riley & Scarborough LLP) for Becton Dickinson and Co.

Companies: Becton Dickinson and Co.

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