Supreme Court Review Sought For 3M Bair Hugger Appeal

This is likely 3M's last effort to avoid facing thousands of infection lawsuits over the surgical warming devices in the coming months and years.

After a U.S. appeals court reinstated more than 5,000 of Bair Hugger lawsuits filed by individuals who suffered devastating joint infections from the forced-air warming blanket used during hip and knee replacements, 3M Company is making one last attempt to avoid facing juries over the claims, asking the U.S. Supreme Court to grant a rare review of the decision.

Each of the claims raise similar allegations that the 3M Bair Hugger warming blanket design disrupts the airflow in operating rooms, causing bacteria and debris from the floor to enter the sterile surgical area, resulting in knee and hip infections that require 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 trial 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 another effort to avoid facing the litigation, 3M and it’s Arizant Healthcare, Inc. subsidiary filed a petition for writ of certiorari (PDF) with the U.S. Supreme Court on February 7, indicating the highest appeal court in the country should evaluate whether the intermediate appellate court erred in its decision by being too permissive with its interpretation of which plaintiffs’ expert witnesses should be allowed.

“These errors are particularly glaring here since the expert testimony – made-for-litigation complaints about a medical device that is the industry standard used 50,000 times each day – is precisely the kind of unreliable testimony Daubert is designed to exclude,” the petition states. “Even the appellate decision reversing the District Court’s well-considered decision to exclude acknowledges the testimony’s flaws.”

The petition comes after the U.S. Court of Appeals for the Eighth Circuit rejected a request by 3M in November, when the company asked the Court to reconsider its decision during a full panel review. The final Bair Hugger appeal avenue is largely seen as a “hail Mary” attempt by the manufacturer, which the U.S. Supreme Court not only needs to determine involves a significant enough issue to consider, but also overturn the lower court decision.

If the Supreme Court rejects the petition, 3M will be unlikely to avoid facing 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.

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