Two more bellwether cases dismissed by plaintiffs; case initially slated for December trial also to be dismissed

3M scored two more victories this week when plaintiffs’ attorneys dismissed two more bellwether cases in the multidistrict litigation involving the 3M™ Bair Hugger™ warming system.

The latest dismissals came on December 3, 2018, when plaintiffs’ lawyers voluntarily dropped Ruth and Douglas Goodpaster v. 3M and Terry Arnold v. 3M.

So far, plaintiffs’ attorneys have voluntarily dismissed eight bellwether cases, which were considered representative of the entire pool of cases. In the only bellwether case that has gone to trial, a jury deliberated less than two hours before finding in favor of 3M.

Also, a trial that was slated to begin on December 3 – the bellwether case of Nancy Axline v. 3M – has been removed from the court’s calendar after most of the plaintiff’s claims were dismissed by the court. That case has not been formally dismissed yet.

Overall, more than 550 lawsuits filed against the Bair Hugger warming system have been dismissed. No cases have been resolved in favor of a plaintiff.

3M contends that the entire litigation against the Bair Hugger warming system is based upon faulty science orchestrated by a 3M competitor, who has conspired with plaintiffs’ lawyers to attack the reputation of the market-leading warming system.

The Bair Hugger system has been safely used more than 300 million times in the past 30 years and continues to be used on thousands of patients each day.

Two more bellwether cases dismissed by plaintiffs

3M secured two more pivotal victories in the multidistrict litigation involving the 3M™ Bair Hugger™ warming system as plaintiffs’ attorneys dismissed another two bellwether cases.

The two dismissals now bring the number of bellwether cases dismissed by plaintiffs’ attorneys to six.

Lawyer Seth Webb of the law firm of Brown & Crouppen voluntarily dismissed David Henderson v. 3M and Julio & Maria Ramirez v. 3M on Oct. 30, 2018.

Both cases had been selected as bellwether cases – which are supposed to be representative of the pool of cases against the 3M Bair Hugger system.

Overall, more than 500 lawsuits against the Bair Hugger warming system have been resolved in 3M’s favor, including a jury verdict in the only case to go to trial.

500 Cases Dismissed - All in Favor of 3M

More than 500 lawsuits now have been dismissed - all in favor of 3M - in the litigation involving the 3M™ Bair Hugger™ warming system.

The large number of dismissals result from a variety of reasons:

  • Plaintiffs are unable to substantiate their claims.

  • Plaintiff’s attorneys have voluntarily dismissed cases, including bellwether cases they nominated for trial.

  • The Bair Hugger system may not have been used during surgery.

  • Plaintiffs did not comply with orders of the court.

Just one case filed in the past three years actually has made it to trial. On May 30, 2018, a federal jury deliberated for less than two hours in the first bellwether case involving the Bair Hugger system before reaching its verdict. The jury determined that the patient warming device is not defectively designed and did not cause the plaintiff’s infection.

Bellwether cases are selected to be representative of the entire pool of cases. Of the first six bellwether cases, four have been dismissed by plaintiffs’ attorneys, one was removed from the bellwether pool and the other resulted in the recent verdict. Another group of six bellwether cases were selected this year and, already, one has been dismissed.

Large numbers of lawsuits are an unfortunate characteristic of the multi-district litigation process, which is designed to streamline the legal process by concentrating multiple lawsuits on the same subject into one court.

In a 2015 report, the U.S. Chamber Institute for Legal Reform discussed the negative side effects of MDL practice.

“Through aggressive advertising and highly sophisticated client-recruitment strategies, plaintiffs’ counsel have been able to use the existence of multidistrict proceedings to attract claims of dubious merit. And because multidistrict proceedings by design have tended to prioritize global issues over individual ones, plaintiffs’ counsel have successfully warehoused claims and shielded them from judicial scrutiny in a way they never could if all the cases were being tried individually.

The litigation against the Bair Hugger system is emblematic of that issue. More than 5,000 cases have been filed, but none have been shown to have merit.

While 3M is sympathetic to patients who experience surgical site infections, there is absolutely no conclusive evidence that Bair Hugger warming therapy causes or increases the risk of surgical site infections.

In fact, the U.S. Food and Drug Administration and a large number of studies continue to recommend patient warming, which has been shown to provide valuable benefits to surgical patients, including reducing the risk of surgical site infections, reduced mortality, fewer post-operative heart attacks, reduced blood loss and faster recovery times.

More and more cases fall by the wayside

Plaintiff’s attorneys drop next bellwether case before trial

Four bellwether cases already dismissed

Plaintiff’s attorneys have dismissed another bellwether case slated for trial in the litigation involving the 3M™ Bair Hugger™ system, marking the fourth such case to be dismissed before ever coming to trial.

On July 10, attorneys for Laura Hives asked a Minnesota federal court to dismiss the case. Hives, who claimed she contracted an infection during a July 2015 surgery, and is represented by Martin Crump of Davis & Crump in Gulfport, Miss., did not state a reason for seeking the dismissal.

The litigation involving the Bair Hugger warming system is consolidated in a multidistrict litigation (MDL) proceeding in Minneapolis. In an MDL, the court tries cases that are emblematic of the other cases in the MDL. These are known as bellwether cases, and the outcomes of these cases can be used to help determine how to best resolve the remaining claims.

The dismissals support 3M’s position that none of these cases have merit. Every lawsuit filed to date relies on a handful of studies supported by a 3M competitor, and every one of those studies acknowledges that there is no proof the Bair Hugger system causes infections.

In the Bair Hugger litigation, attorneys for the plaintiffs and 3M have undergone two rounds of selecting bellwether cases. In each round, attorneys for the plaintiffs and 3M first selected a pool of 16 cases, which was ultimately narrowed further.

In the first bellwether pool, plaintiff’s attorneys dismissed three cases before trial and one was removed from the bellwether pool. Only one case in the first pool has gone to trial, and a jury in May took less than two hours to find in favor of 3M.

Because of the bellwether dismissals, attorneys from both sides nominated a second group of cases to serve as the next round of bellwether trials. Hives, which was one of those cases and one of the two cases next slated for trial, is now dismissed by the plaintiff’s attorneys.

The next bellwether case slated for trial is Axline v. 3M and is scheduled to begin December 3, 2018.

Court: plaintiffs can’t move bellwether cases out of Minnesota

After jury verdict in favor of 3M, plaintiffs fail in attempt to switch bellwether cases to other jurisdictions

In the wake of a unanimous jury verdict in favor of 3M and its Bair Hugger™ warming system, a federal court has denied a request by plaintiffs to effectively move their bellwether cases out of Minnesota into other jurisdictions for trial.

The ruling was yet another victory for 3M in the litigation involving the Bair Hugger warming system.

After plaintiffs lost the first bellwether case, Gareis v. 3M, in May, they sought to retract their consent to try the remaining bellwether cases in Minnesota federal court. (Plaintiffs must consent to try cases in a jurisdiction other than where the case originally was filed – those consents are known as Lexecon waivers.) The attempted retraction was a sharp reversal from the plaintiffs’ prior position. In 2015, the plaintiffs offered a host of reasons why they believed the bellwether cases should be consolidated in Minnesota.

3M objected to the attempt to retract the Lexecon waivers. In its court papers, 3M wrote: “Plaintiffs knowingly and voluntarily consented to trial in this venue in order to be considered or selected as bellwethers, and they cannot now “unring the bell” because they are dissatisfied with a foreseeable choice-of-law ruling or the jury verdict in the Gareis case. If they no longer believe they can prevail at trial, then they should dismiss their cases.’’

The federal court ruled that the retractions are “invalid as unsupported by good cause.’’ The court also noted that “the prospect of these unilateral retractions would undermine the bellwether process.’’

More than 400 lawsuits dismissed to date

More than 400 lawsuits have been dismissed in the litigation involving the 3M™ Bair Hugger™ warming system.

Nearly all of the dismissals, which now number 464, occurred prior to the recent jury verdict in favor of 3M. On May 30, 2018, a federal jury deliberated for less than two hours in the first bellwether case involving the Bair Hugger system before reaching its verdict. The jury determined that the patient warming device is not defectively designed and did not cause the plaintiff’s infection.

The large number of case dismissals are not a surprise to 3M’s legal team, which expected that a significant number of the lawsuits filed in the multidistrict litigation would not meet the proper legal standards. More dismissals are expected.

The dismissals result from a variety of reasons:

  • Plaintiffs are unable to substantiate their claims.
  • Plaintiff’s attorneys have voluntarily dismissed cases, including bellwether cases they nominated for trial.
  • The Bair Hugger system may not have been used during surgery.
  • Plaintiffs did not comply with orders of the court.

Federal Jury Rules in Favor of 3M

Verdict affirms science behind 3M Bair Hugger System

Today, a federal jury ruled in favor of 3M, concluding that the 3M™ Bair Hugger™ patient warming system did not cause the plaintiff’s infection. The jury deliberated less than two hours before reaching its verdict..

3M is grateful that the jury put science first. This verdict affirms the science behind the 3M Bair Hugger system, which has been proven to be a safe and effective way to warm patients during surgery. Many clinical studies have shown that maintaining normal body temperature – through the use of forced-air warming – reduces the risk of surgical-site infections, decreases the risk of post-operative heart attacks, reduces blood loss, and helps patients recover faster following surgery. It is noteworthy that just last August, the U.S. Food and Drug Administration recommended that healthcare providers continue to use warming devices, including forced-air devices such as the Bair Hugger system, when clinically warranted. In the past three decades, more than 200 million patients have been successfully and safely warmed by 3M’s patient warming products.

This litigation stems directly from a decade-long campaign by a competitor to malign the technology behind the Bair Hugger system..

You can read a news story about the verdict here.

 

More than 300 lawsuits dismissed to date

More than 300 lawsuits have been dismissed in the litigation involving the 3M™ Bair Hugger™ warming system, with more expected in coming months.

The dismissals are not a surprise to 3M’s legal team, which expected that a significant number of the lawsuits filed in the multi-district litigation would not meet the proper legal standards.

The dismissals result from a variety of reasons:

  • The Bair Hugger system may not have been used during surgery.
  • People are unable to substantiate their claims.
  • Plaintiffs failed to properly follow through on their claims.
  • Plaintiffs did not comply with orders of the court.

In the past two years, plaintiffs’ lawyers have spent millions of dollars soliticing patients who contracted infections during or after surgery, telling them that scientific evidence may suggest that their infections are related to patient warming.

More than 4,000 lawsuits have been filed in the federal multi-district litigation during the past 24 months, nearly all of them with similar language and a lack of factual information. All of the lawsuits rely on the same small group of studies promoted by a 3M competitor. 3M has argued in court documents that the science underlying the lawsuits is deeply flawed.

3M won a major victory on January 8, 2018, when a Minnesota state court granted summary judgment to 3M, dismissing 61 lawsuits that had been filed by Minnesota plaintiffs who claimed the warming device had caused their infections. In its 15-page decision, the court said that “there is no generally accepted scientific evidence – and plaintiffs offer none – that the risk of infection associated with [forced air warming] is greater than that associated with patients who are not warmed during surgery.’’ In addition, the court said there is no scientific evidence that other warming devices have a lesser infection rate than forced-air warming devices.

The court pointedly noted the role played in the litigation by 3M competitor Scott Augustine. “As stated at the beginning of this memorandum, Scott Augustine

blatantly and unapologetically threatened Defendants with negative ‘rhetoric’ and ‘studies’ with pre-determined findings to pursue a business advantage.”

In August 2017, the FDA sent a letter to healthcare providers stating that it continues to recommend the use of patient warming devices, including forced-air warming systems, for surgical procedures when clinically warranted. The FDA said it became aware that some providers and patients were not using forced-air warming as a result of the infection claims. The agency said that, after a thorough review of available data, it was unable to find a consistently reported association between forced-air warming and infections.

The first trial in the Bair Hugger system multi-district litigation is set to begin in May

State Court grants summary judgment to 3M, dismissing 61 lawsuits

Ruling notes Scott Augustine role in litigation

3M won a major victory on January 8, 2018, when a state court granted summary judgment in the litigation involving the 3M™ Bair Hugger™ warming system.

The ruling dismisses 61 lawsuits that had been filed by Minnesota plaintiffs who claimed the warming device had caused their infections.

In its 19-page decision, the court said that “there is no generally accepted scientific evidence – and plaintiffs offer none – that the risk of infection associated with [forced air warming] is greater than that associated with patients who are not warmed during surgery.’’ In addition, the court said there is no scientific evidence that other warming devices have a lesser infection rate than forced-air warming devices.

The court pointedly noted the role played in the litigation by 3M competitor Scott Augustine, who has waged a decade-long campaign to malign the Bair Hugger warming system by claiming it increases the risk of infection. Augustine’s company makes a competing product, the HotDog warming system.

In the ruling, the court said: “As stated at the beginning of this memorandum, Scott Augustine blatantly and unapologetically threatened Defendants with negative ‘rhetoric’ and ‘studies’ with pre-determined findings to pursue a business advantage. Perhaps in response to those threats and the litigation that has followed, the FDA reaffirmed the generally accepted science regarding warming devices in its August 2017 letter to health care providers.”

While the ruling does not affect more than 4,000 lawsuits filed in Minnesota federal court, 3M said the decision should further calm any fears provoked by Augustine.

“This ruling affirms our position that there is no generally accepted science that the 3M™ Bair Hugger™ warming system causes infections,” 3M said.

Last month, the Minnesota federal court overseeing the multi-district litigation said it would allow plaintiffs to present their evidence at trial. 3M intends to show the serious flaws in the plaintiffs’ research during the trial.

The first bellwether case is set for trial in May 2018.

Both the state and federal courts last summer denied plaintiffs’ request to seek punitive damages in the bellwether trials, noting that plaintiffs failed to provide scientific proof that the Bair Hugger system causes surgical site infections and failed to show that 3M disregarded patient safety.

In the state court ruling, District Court Judge William H. Leary III detailed a history of bad behavior by Augustine, including a conviction for Medicare fraud and repeated warnings from regulators about his marketing tactics. Judge Leary also noted that Augustine worked closely with Kennedy Hodges, the law firm that filed the first complaints against the Bair Hugger system and remains on the executive committee of plaintiffs’ counsel.

You can read the full ruling here.

Third bellwether case dismissed; just two of initial six bellwether cases remain

Another bellwether case has been voluntarily dismissed from the 3M Bair Hugger multi-district litigation.

The law firm of Brown & Crouppen, which has aired more than 2,000 advertisements seeking patients who contracted surgical site infections, agreed to dismiss a lawsuit it filed on behalf of Kurtis and Debbie Skaar against 3M.

Brown & Crouppen, claimed that Mr. Skaar developed an infection in 2014 as a result of the use of the Bair Hugger patient warming system. They dismissed the case when it was revealed that the Bair Hugger device was not used in the surgery.

Of the initial six cases chosen for the final bellwether trial pool, just two remain. Three have been voluntarily dismissed from the overall litigation; and one was de-selected as a bellwether case.

More than 4,000 lawsuits have been filed as part of the multi-district litigation. The federal court agreed to hear six initial cases.

The voluntary dismissals of the three bellwether cases – which were initially selected as representative of the group of lawsuits – lend support to the reality that multi-district litigations often attract a significant number of lawsuits with dubious, even frivolous merits.

The first bellwether trial, Gareis v. 3M, is slated for April 2018 in Minnesota federal court. Gareis is a South Carolina man who claims to have contracted an infection during a total hip replacement in 2010.