The 3M Bair Hugger Warming Blanket Mass Tort Litigation Moves Forward

surgeonsRoughly 5000-6000 plaintiffs have been through a bumpy ride in the Bair Hugger mass tort litigation.  About 5060 Bair Hugger lawsuits were dismissed with most later reinstated. Additionally, new ones have been filed. As of this 3M Bair Hugger Litigation update, 5250 lawsuits are currently pending. Yet, to date, only a single Bellwether trial has taken place and it resulted in a defense verdict. Even the United States Supreme Court weighed in on the Bair Hugger lawsuits before they were finally left to move forward in front of the Judge granting the dismissal in the first place.  How have we come to this point and where do we go next in the 3M Bair Hugger mass tort litigation?

What is a Bair Hugger Forced Air Warming Blanket?

The Bair Hugger Forced Air Warming Blanket is a medical device used to keep patients warm and help the body regulate warmth during surgery. It works by sucking in air and blowing warmed air under the surgical drape. It is commonly used during knee replacement and hip replacement surgeries.

What is the alleged defect in 3M Bair Hugger surgical warming blankets?

Some research has suggested that the Bair Hugger warming blankets increase the risk of infection during surgery because they can suck contaminates into the tube versus clean air. This is the product design defect that the plaintiffs allege caused their infections during surgery.

History of the Warming Blanket

The 3M Bair Hugger Warming Blanket was originally acquired from the inventor around 2002. The acquiring company then changed names and became a subsidiary of 3M. Eight years later the original inventor wrote to 3M demanding they recall the Bair Huggers on grounds that there was a design flaw that increased the risk of infection. The warnings were dispelled as disparaging the business because the original inventor had a competing product. 3M chose not to redesign the product. Somewhere in the neighborhood of 50,000 have been put into the stream of commerce in the United States.

Rocky Court Battles

In 2021, over 5000 Bair Hugger lawsuits had been filed. The judge overseeing the MDL then dismissed them basically holding that the theory of liability relating the Bair Huggers to an increased risk of infection was not reliable.  However, on August 23, 2021, a Federal Court of Appeals overturned this decision and reinstated the 5000 Bair Hugger lawsuits. The U.S. Supreme Court declined to hear 3M’s appeal.

The Minnesota Bair Hugger Lawsuit

The first Bellwether trial was a Bair Hugger lawsuit from Minnesota called Gareis v. 3M Bair Hugger. It resulted in a verdict for the defense following a two-week-long trial. Additionally, about 60 Bair Hugger cases were dismissed in Minnesota State Court. The Minnesota Courts use a much higher standard of admissibility (the Frye-Mack test) than the Federal Daubert standard which was used in the federal court cases. Under Fyre-Mack, first, novel scientific evidence must be generally accepted in its relevant scientific community, and second, the evidence must have foundational reliability. They have used this standard to exclude evidence that would otherwise pass a Daubert challenge.

Other Developments

Since 2021, no new 3M Bair Hugger lawsuit trials have taken place. 3M has urged that they resume in 2024. On April 17, 2023, a Motion to Disqualify U.S. District Judge Joan Erickson of Minnesota alleging that he hired a retired defense lawyer as his consultant and that he relied on those legal theories in arriving at his decision that was later overturned by the 8th Circuit. A Motion to Disqualify Judge David Schultz who is presiding over the MDL has also been filed. The grounds alleged for the latter are that Schultz’s financial advisor bought and sold 3M stock during the MDL.

The Future of 3M Bair Hugger Lawsuits

At the present time, product liability lawyers have resumed filing lawsuits on behalf of patients who developed infections following knee and hip replacement surgeries that involved the use of a 3M Bair Hugger Forced Air Warming Blanket.  Little is likely to occur until the above Motions to Dismiss have been ruled upon. If either of the judges grants disqualification, he will have to step down and another Judge will have to take his place before bellwether trials may resume. If the Motion is denied in the MDL, then bellwether trials can be expected to resume in the near future.  In any event, the time to file a Bair Hugger lawsuit in the 3M Bair Hugger litigation is running out quickly, so now is the time for persons alleging infection to move forward.

Do I Have a Bair Hugger Lawsuit?

Whether you have a Bair hugger lawsuit must be determined on a case-by-case basis. Every state has different statute of limitations rules and discovery rules that may affect your case. Additionally, these can be affected by healthcare liability laws in some states. Thus, you would be wise to have your case evaluated promptly to determine whether you have a viable Bair Hugger lawsuit.




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