We had been looking for the Divelbliss verdict since Friday. The trial was scheduled to conclude September 4, but by the end of the day there was still no meaningful reporting of a result. Nothing substantial surfaced through the weekend, and it was not until Tuesday night that the outcome began moving through the national legal press.
The verdict itself had been returned four days earlier. A federal jury in Phoenix awarded $40 million in compensatory damages to Kimberly Divelbliss, giving PowerPort plaintiffs their first federal bellwether win and, more importantly, their first jury result in a catheter-fracture case.
I have looked for an explanation for the delay and have not found one. There has been no public statement from Divelbliss's lawyers addressing why the verdict did not surface sooner, and nothing I have seen suggests the result was sealed or intentionally withheld. The Labor Day weekend undoubtedly affected the normal news cycle, but beyond that, there is no factual basis to speculate.
For a $40 million verdict in an active medical-device MDL, however, the silence was noticeable.
A Trial Ruling That Makes the Verdict More Interesting
One of the more useful pieces of the trial record came four days before the verdict. On August 31, Judge David Campbell ruled that Divelbliss could not use approximately $1.52 million in medical-facility invoices to establish damages because the necessary proof regarding the reasonableness of those charges had not been properly disclosed.
The ruling took a meaningful category of claimed medical expenses off the table. Four days later, the jury returned $40 million in compensatory damages.
We do not yet have enough information to responsibly break down how jurors arrived at the number, and there is no reason to try to reverse-engineer the verdict. What can be said is that this was not simply a jury looking at $1.52 million in hospital bills and building an award around them. The compensatory number came after those invoices had been excluded.
That is a detail plaintiff lawyers evaluating this bellwether should keep in mind.
Bard’s Defense Was About Why the Catheter Failed
Readers of our earlier PowerPort bellwether coverage will remember why Divelbliss presented a different liability test from Cook. Cook was an infection case. Divelbliss was the first federal bellwether involving the failure mechanism that sits at the center of a substantial portion of the PowerPort inventory: catheter fracture and migration.
Divelbliss received a Bard PowerPort with a Groshong silicone catheter in 2017. The catheter later fractured, with a substantial portion separating from the device and migrating to the right atrium of her heart. Her case connected that event to two heart attacks, additional cardiac procedures, and the implantation of a permanent pacemaker.
Bard's defense did not turn on whether the catheter fractured. That fact was difficult to dispute. The trial fight was over why it fractured.
The defense pointed toward subclavian placement, pinch-off syndrome and the conduct of the implanting physician rather than a defect in Bard's catheter. Plaintiffs, by contrast, attacked the mechanical integrity of the Groshong silicone catheter and Bard's warnings surrounding fracture risk. The jury heard those competing explanations and found for Divelbliss on negligent design defect and failure to warn.
For purposes of reading this bellwether, that liability finding may be more important than the headline number.
This Was Not a Punitive-Damages Verdict
The jury did not give Divelbliss everything she asked for. Jurors rejected the manufacturing-defect and fraudulent-concealment claims, and they did not award punitive damages.
That distinction is worth making because it tells us something about how the case was received. This was not simply a jury expressing anger at Bard and attaching a punitive number to the verdict. The $40 million was compensatory, tied to the injuries the jury attributed to the design and warning failures it found.
That arguably makes the result more useful when assessing the bellwether than a verdict dominated by punitive damages would have been.
Cook and Divelbliss Now Present Very Different Jury Results
Bard came out of the first federal PowerPort bellwether, Cook, with a favorable result on several claims, including failure to warn. The jury, however, did not resolve Cook's design-defect claim. Divelbliss now adds a very different data point. This was a different device configuration, a different injury mechanism and a much more direct product-failure case. Instead of an infection with competing possible sources, the jury was presented with a catheter that physically fractured inside the patient and migrated into her heart.
The jury was then asked to decide whether the failure was attributable to the device or to outside factors such as implantation technique and anatomical compression. It found Bard responsible on design-defect and failure-to-warn theories and awarded $40 million.
One plaintiff verdict does not establish a settlement matrix, and it would be premature to use Divelbliss to assign values across the PowerPort inventory. But the litigation now has something it did not have before September 4: a federal jury has considered a fracture-and-migration case, rejected Bard's principal causation defenses and returned a substantial compensatory verdict.
That changes the bellwether record. The next PowerPort trial will be watched much more closely.