Bair Hugger Settlement Mediator Appointed After Infection Lawsuits Returned to MDL For Trial

The Court must now decide whether to remand the cases to their originating courts for trial, or to hold additional bellwether trials in hopes of sparking a settlement agreement or other resolution.

The U.S. District Judge presiding over thousands of recently reinstated Bair Hugger lawsuits has appointed a mediator to explore potential settlements or resolution of outstanding issues in the cases, before deciding whether large numbers of claims will be remanded back to federal courts nationwide for individual trial dates.

3M Company faces more than 5,000 product liability lawsuits over surgical infections allegedly caused by the Bair Hugger forced-air warming blanket, which has been commonly used during hip and knee replacements. However, plaintiffs allege that the design disrupts the airflow in the operating room, causing bacteria and debris from the floor to enter the sterile surgical area, resulting in devastating infections and the need for multiple surgical procedures to remove and replace the infected joint.

In 2019, following several years of litigation, the federal Bair Hugger litigation was dismissed, after the judge ruled that plaintiffs’ expert witnesses were precluded from testifying at trial. However, the U.S. Court of Appeals for the Eighth Circuit overturned that decision in August 2021, returning each of the individual Bair Hugger infection lawsuits back to the trial court for further proceedings.

The cases are now pending before U.S. District Judge Joan Ericksen, who has presided over coordinated discovery and pretrial proceedings, and now must decide whether each of the lawsuits should be remanded back to the U.S. District Courts where the claim originated for trial, or whether additional “bellwether” trials should be scheduled in the federal MDL to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout the claims.

In a joint status report (PDF) issued on January 22, the parties took divergent positions on how the litigation should proceed.

While the plaintiffs have urged the court to work with the parties to design a plan for the remand of several large “waves” of cases back to courts nationwide, for simultaneous case-specific discovery and trial, 3M indicates that would be premature. The manufacturer indicates that additional bellwether trials are warranted, indicating that another round of cases can be “trial-ready” by early 2023, allowing the parties to learn additional information that was not discovered during prior rounds of bellwether trials.

In response to the filing, Judge Ericksen issued a court order (PDF) on February 2, appointing retired U.S. Magistrate Judge Arthur Boylan as a special mediator in the case.

While reinstating the cases and some of plaintiffs’ expert testimony, the appellate court did exclude some parts of their testimony, and refused a plaintiffs’ request to unseal some filings in the appeals process. The impact on where the litigation goes from here remains to be determined.

The decision means 3M once again face thousands of hip infection lawsuits and knee infection lawsuits filed in the federal court system. If a settlement agreement cannot be reached, it will be up to the court whether to move forward with bellwether trials in hopes of reaching a resolution for the cases, or to remand them to their originating courts for trials as plaintiffs have requested.