Decision to Reinstate Lawsuits Over Bair Hugger Warming Blanket Will Not Be Re-Reviewed By Eighth Circuit

The ruling means 3M Company must face thousands of hip and knee infection lawsuits linked to surgical warming blankets.

The U.S. Court of Appeals for the Eighth Circuit has rejected a request made by 3M Company, which asked the full panel to take a second look at a recent decision that reinstated thousands of Bair Hugger warming blanket lawsuits filed by individuals who suffered devastating infections after the device was used during hip and knee replacement procedures.

In 2019, following several years of litigation, a U.S. District Judge dismissed the federal Bair Hugger litigation, after excluding plaintiffs’ expert witnesses, who would have testified that the forced air warming blankets caused bacteria and debris from the operating floor to enter the sterile surgical area. However, in August, a panel of three appellate judges overturned that decision, returning thousands of cases to the lower court for further proceedings.

In September, 3M Company filed a request for an en bank review, claiming that the decision conflicted with decisions issued by the U.S. Supreme Court. The company wanted the full panel of judges to review the decision, as well as judges’ requirements for accepting or rejecting expert testimony, claiming such a review would lead to the cases being dismissed once again.

However, on November 9 the Eighth Circuit once again rejected 3M’s arguments, denying the company’s request for a rehearing, meaning the lawsuits will remain reinstated and will be returned to the lower court for further proceedings.

The 3M Bair Hugger was widely used in operating rooms nationwide, to control body temperature during orthopedic joint replacement surgery, by forcing warm air into a blanket placed over the patient. However, plaintiffs alleged that the product was unreasonably dangerous and defective, disrupting the airflow design in operating rooms, which was intended to keep contaminants out of the surgical area.

Plaintiffs allege they suffered devastating infections after a knee or hip replacement involving the Bair Hugger warming blanket, often resulting in the need for multiple surgical procedures to remove the infected joint, temporarily insert an antibiotic spacer and then ultimately go through another joint replacement.

Given similar questions of fact and law raised in lawsuits filed through the federal court system, the U.S. Judicial Panel on Multidistrict Litigation (JPML) centralized the cases before U.S. District Judge Joan Ericksen in the District of Minnesota for coordinated discovery and pretrial proceedings in 2015. Following coordinated discovery and pretrial proceedings, Judge Ericksen ultimately dismissed the 3M Bair Hugger litigation, after deciding that plaintiffs’ expert witness testimony was not sufficiently reliable and based on sound science to allow the cases to reach a jury.

The Eighth Circuit Court of Appeals decision in August reversed that decision, saying that while some of the expert opinions’ arguments may be questionable, they were still sufficient to be presented for a jury to decide their worth.

The decision means 3M once again face thousands of hip infection lawsuits and knee infection lawsuits filed in the federal court system, which may now be scheduled for a series of early bellwether trials to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation if Bair Hugger infection settlements are not reached.