Direct Filing of Hip, Knee Infection Lawsuits Permitted in Bair Hugger MDL

As a growing number of hip infection lawsuits and knee infection lawsuits continue to be filed against the makers of the Bair Hugger forced-air warming system used in operating rooms nationwide, the U.S. District Judge presiding over the litigation is allowing cases to be filed directly into the federal multidistrict litigation (MDL), to minimize delays and promote judicial efficiency.

There are currently more than 200 Bair Hugger lawsuits pending throughout the federal court system against 3M Company and its Arizant Healthcare subsidiary, each involving similar allegations that a design of the forced-air warming blanket commonly used during hip and knee replacement surgery may cause bacteria or contaminants to enter the sterile surgical site.

As hip and knee infection lawyers continue to review and file additional cases in the coming months and years, it is ultimately expected that several thousand claims involving severe and debilitating deep tissue infections may be brought on behalf of individuals throughout the United States.

Given the similar questions of fact and law presented in the cases, the U.S. Judicial Panel on Multidistict Litigation (JPML) established coordinated pretrial proceedings for the federal litigation, centralizing cases brought nationwide before U.S. District Judge Joan Ericksen in the District of Minnesota to reduce duplicative discovery into common issues that will arise in the cases, avoid conflicting pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the courts.

To increase efficiency and avoid the delays associated with transferring cases from U.S. District Courts nationwide to the District of Minnesota, Judge Ericksen issued a pretrial order (PDF) on April 29, which permits lawyers to file lawsuits directly into the Bair Hugger MDL.

“The direct filing of actions in [the Bair Hugger] MDL… in the District of Minnesota is solely for purposes of pretrial discovery and related proceedings,” wrote Judge Erickson. “The District of Minnesota shall not be deemed the ‘transferor court’ solely by virtua of an action having been filed in this District pursuant to this Order. At the conclusion of all pretrial discovery and proceedings, this Court… may transfer any case directly filed in this District to a federal district court of proper venue…, based on recommendations or stipulations of the parties to that case, or following its determination after briefying by the parties.”

Bair Hugger Blanket Infection Risks

The order comes just two weeks before a scheduled “Science Day” on May 19, where each side will present information in a non-adversarial setting about the risks associated with using the warming system during hip and knee replacement surgery.

The 3M Bair Hugger is a surgical warming blanket commonly used in recent years during hip replacement and knee replacement procedures, to help control body temperature during surgery. However, lawsuits over the warming blanket allege that the design of the forced-air warming blanket disrupts the laminar air flow in the operating room, allowing bacteria and contaminants from the floor to enter the surgical wound.

Plaintiffs claim that they have suffered severe and debilitating infections from the Bair Hugger blanket, often resulting in the need for multi-stage revision surgery, with placement of antibiotic spacers and extended periods of complete immobility.

Lawsuits over the warming blanket claim that the manufacturer has known about the hip and knee surgical infection risk for years, yet failed to make design changes or provide warnings to the medical community.

Following the “Science Day” and the conclusion of discovery in the pretrial proceedings before Judge Ericksen, it is expected that the first “bellwether” trial will begin in November 2017. While the outcome of this early trial date will not be binding on other cases, it will be closely watched by those involved in the litigation, as it will help gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout a number of claims and may influence eventual Bair Hugger infection settlements that could help the manufacturer avoid hundreds of individual trial dates.