Knee and Hip Infection Lawsuits Bellwether Selection Process Outlined in Bair Hugger MDL

The U.S. District Judge presiding over all federal hip infection lawsuits and knee infection lawsuits filed against the maker of the Bair Hugger forced air warming blanket has outlined the process for selecting a group of early “bellwether” cases for early trial dates.

There are currently almost 900 Bair Hugger lawsuits pending throughout the federal court system against 3M Company and its Arizant Healthcare subsidiary, each involving similar allegations that the design of surgical warming blanket commonly used during hip and knee replacement surgery increases the risk that bacteria or contaminants may enter the sterile surgical site, leading to reports of severe and debilitating infections.

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 will be brought on behalf of individuals who experienced a deep tissue infection following orthopedic surgery, typically resulting in the need for removal of the artificial hip or knee, placement of antibiotic spacers and multiple additional surgical procedures.

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 last year, 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.

Judge Ericksen previously indicated that a small group of representative “bellwether” hip and knee infection cases will be set for early trial dates, which are expected to begin in November 2017. While the parties have been working on general fact discovery regarding elements that impact all cases, a small group of cases are expected to be selected by March 2017, which will be used to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

In a pretrial order (PDF) issued on November 16, Judge Ericksen outlined the protocol for selecting the bellwether cases, indicating that a group of 150 lwsuits will be randomly selected by the court on December 23, 2016. The parties will then jointly submit to the Court an overview of relevant characteristics or categories to be considered in assessing whether cases are representative of the range of cases in the consolidated litigation.

By January 20, 2017, plaintiffs and defendants will each nominate 16 to 18 cases fro the pool of randomly selected cases, as well as state court cases pending in Ramsey County, Minnesota. Following the nominations, limited case-specific discovery on the identified cases, and Judge Ericksen indicates that the parties will then submit a joint list of 8 cases by February 10, 2017, together with a brief description of the case and a paragraph explaining why the case is representative.

On or before March 1, 2017, the Court will consider the parties’ proposals and confirm the final bellwether trial pool. The parties will then each have an opportunity to exercise one strike by March 8, 2017, eliminating the case from consideration from the initial bellwether trial schedule, which will be set at a later date.

While the outcomes of these early trial dates will not be binding on other hip and knee infection lawsuits pending nationwide, they will be closely watched by parties involved, and may help facilitate Bair Hugger settlements that would avoid the need for hundreds of individual cases to go before juries nationwide.