Court denies plaintiffs’ request to add punitive damages; raises questions about science underpinning lawsuits
A federal court has denied a motion by plaintiffs’ attorneys to add claims for punitive damages to the bellwether trial pool cases, ruling that the plaintiffs failed to show that 3M has acted with “deliberate disregard for the rights and safety of others.’’
The ruling is a significant victory for 3M, which had argued that there is no scientific evidence that shows the 3M™ Bair Hugger™ warming system causes surgical site infections nor is there any evidence that 3M ever disregarded patient safety.
In the August 27 ruling, the court also ordered attorneys for 3M and the plaintiffs to meet and propose a procedure to determine whether the court’s decision should apply to all of the cases in the multi-district litigation. For now, the decision only applies to the five bellwether cases that will serve as a litmus test for the overall litigation. The first of those trials is scheduled to begin in February 2018.
The court’s ruling echoed arguments made by 3M: that the small number of research studies used by plaintiffs as the core of their cases shows no correlation between the Bair Hugger System and patient infections.
“Indeed,’’ the ruling noted “incorporating the studies relied on by reference in the pleadings, the Court observes that each study disclaims any direct correlation between the presence of bacteria and an increase in the risk of surgical site infections. There is no reasonable inference that could be drawn by a factfinder that presence of bacteria in the device would result in an increased infection risk of the surgical site itself.’’
The court concluded: “Plaintiffs have failed to plausibly allege on the face of their proposed pleading that Defendants acted with deliberate disregard for the rights and safety of others.’’
3M had argued forcefully that the court should deny the plaintiffs’ motion.
“No court in this district has ever allowed a plaintiff to allege punitive damages based on evidence anything like the evidence before this court,” 3M lawyers wrote. “Plaintiffs have failed to come forward with clear and convincing evidence that either Arizant or 3M deliberately disregarded a high probability of injury to Plaintiffs. …. Plaintiffs lack scientific support for their allegations that the Bair Hugger system causes surgical site infections, and they cannot dispute that the Bair Hugger system remains the standard of care for millions of patients every year.’’
The court ordered attorneys to propose a procedure with 30 days that will allow the court to determine whether plaintiffs can amend any lawsuits in the case to add punitive damages.