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Hip and Knee Surgery Lawsuits Selected for Bair Hugger Bellwether Trial Pool

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A small group of hip surgery infection lawsuits and knee surgery infection lawsuits have been selected as part of a bellwether trial pool in the federal multidistrict litigation (MDL) established for all cases over problems allegedly caused by the Bair Hugger warming blanket commonly used during joint replacement.

Since December 2015, all Bair Hugger infection lawsuits filed throughout the federal court system have been centralized before U.S. District Judge Joan Ericksen in the District of Minnesota for coordinated discovery and pretrial proceedings, since each claim raises similar product liability claims against 3M Company and its Arizant Healthcare subsidiary, alleging that the device increases the risk of severe and debilitating infections.

Plaintiffs claim that the forced air warming system commonly used to control body temperature during hip and knee replacement surgery actually disrupts the laminar airflow of the operating room, causing bacteria and other contaminants from the floor to enter the area around the open surgical site. As a result, plaintiffs indicate that they have been left with severe and debilitating deep joint infections, typically requiring multiple surgical procedures and lengthy treatment.

As part of the coordinated pretrial proceedings in the MDL, Judge Ericksen previously established a “bellwether” program, where a group of 150 randomly selected cases are being prepared for a series of early trial dates, which are set to begin next year to help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout many of the 1,750 cases currently pending in the MDL.

In a pretrial order (PDF) issued on May 30, Judge Ericksen identified eight representative cases that will be part of the final bellwether trial pool, which will be eligible to be the first to go before juries.

The final list includes at least three cases that the sides disagreed about, arguing that they were not representative of the larger body of the litigation.

In a May 24 letter (PDF) the defense questioned the inclusion of one of the cases, because the plaintiff had recently been diagnosed with cancer, and also claimed the case was not representative because his infection followed a wound complication after the surgical incision ruptured. In a May 24 letter by plaintiffs (PDF), they indicated that this plaintiff’s cancer diagnosis was recently discovered, and did not address the wound complication.

Another case selected for the final bellwether trial pool was objected to by plaintiffs, who argued that an additional procedure between his total knee replacement surgery and his infection made the case non-representative. Defendants claimed that such surgeries, arthroscopy to remove scar tissue, were not unusual and should not disqualify the case from the trial pool.

Following the completion of bellwether case discovery, challenges to the admissibility of expert witness testimony and any dispositive motions, Judge Ericksen has indicated that the first trial will commence on February 8, 2018.

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.

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