Second Round of Hip and Knee Infection Lawsuits to be Selected for Bair Hugger Bellwether Trials

While a first group of “bellwether” trials in the federal litigation over the Bair Hugger warming blanket are set to be “trial-ready” by the middle of this year, the U.S. District Judge presiding over thousands of hip infection lawsuits and knee infection lawsuits filed against the manufacturer of the controversial device has indicated that another group of cases will be selected for a second wave of early trial dates.

There are currently about 4,200 product liability lawsuits pending in the federal court system, each involving allegations that the 3M Bair Hugger Forced Air Warming System caused deep joint infections following hip replacement and knee replacement procedures.

The complaints raise similar allegations that 3M Company and its Arizant Healthcare subsidiary sold an unreasonably dangerous and defective warming blanket commonly used by hospitals nationwide, which disrupts the laminar airflow of the operating room, causing bacteria and other contaminants from the floor to enter the sterile area around the surgical site. Plaintiffs maintain that they have been left with severe and debilitating deep joint infections after use of a Bair Hugger blanket, typically resulting in the need for multiple surgical procedures and lengthy infection treatment.

Given similar questions of fact and law raised in complaints filed nationwide, the federal litigation has been centralized before U.S. District Judge Joan Ericksen in the District of Minnesota for coordinated discovery and pretrial proceedings, as part of an MDL, or multidistrict litigation.

As part of the coordinated pretrial proceedings in the MDL, Judge Ericksen has established a “bellwether” program, where an initial group of cases have been prepared for early trial dates, which are designed to test how juries may respond to certain evidence and testimony that is likely to be repeated throughout the cases.

According to a schedule issued in October 2017, the first Bair Hugger cases will be “trial ready” by April 30, 2018.

This month, Judge Ericksen indicated that a second group of eight more bellwethers will be selected, and be prepared for another round of early trial dates.

In a pretrial order (PDF) issued on January 19, Judge Ericksen identified a group of 100 cases randomly selected from all claims filed in the MDL by October 1, 2017. The parties will each select 16 cases from this group that are “bellwether-appropriate” by March 12. The next day, the court will narrow that pool of 32 cases down to 12, and give each party the chance to strike two cases from that group, leaving eight additional bellwether cases.

The Plaintiffs will be required to provide a complete Plaintiff Fact Sheet, determine that a Bair Hugger was used during the surgery at issue and then provide evidence of Bair Hugger use to the Defendants.

Judge Ericksen calls for Plaintiffs and Defendants to jointly or seperately propose a bellwether sequence by March 27, 2018, and a schedule for getting the first two Bellwether cases trial ready.

Although the outcome of the Bair Hugger bellwether trials will not be binding on other cases in the litigation, they will be closely watched by lawyers involved in the cases and may help facilitate eventual hip and knee infection settlements to avoid the need for hundreds of individual trials in courts nationwide.