3M competitor Scott Augustine testified that he helped engineer the first personal injury lawsuits against the 3M™ Bair Hugger™ warming device.
Scott Augustine, CEO of Augustine Temperature Management, testified in a sworn statement to a Minnesota federal court, that he hired Houston law firm Kennedy Hodges LLP in July 2009, more than six years before the first lawsuits were filed against 3M. Augustine acknowledged that he wanted to find ways to generate personal-injury lawsuits against 3M and the Bair Hugger system.
“The purposes of the representation were multiple,’’ Augustine said in the court affidavit. “First, we wanted to learn about product liability litigation – how cases were analyzed, what evidence was required, etc…Second, we wanted to understand why personal injury firms virtually never filed cases on behalf of patients injured by surgical infections. Finally, we wanted to educate Kennedy Hodges about the research regarding the risks of forced-air warming, receive analysis and reactions from them, and understand their concerns and objections, if any.’’
The affidavit, filed in December, upholds 3M’s long-held contention that Augustine is the architect of the litigation against the Bair Hugger device. Kennedy Hodges filed the first and second lawsuits alleging that the Bair Hugger causes surgical site infections, and represent numerous plaintiffs in the current litigation.
Interestingly, Augustine’s retention of Kennedy Hodges occurred before the publication of any research suggesting that forced-air warming might increase the risk of surgical site infections. That research, which forms the basis of the litigation against the Bair Hugger system, was funded, sponsored or connected in some way to Augustine. None of the key studies cited by plaintiff lawyers provide any verifiable link between infections and the Bair Hugger warming device.
3M – and dozens of scientific research studies – show that the Bair Hugger system is not only safe and effective, it also reduces the risks of surgical site infections.
In its court papers, 3M notes that Augustine “was the original inventor and developer of the Bair Hugger patient warming system. After being forced out of his own company, he pled guilty to Medicare fraud, developed a competing ‘HotDog’ warming system, and immediately began a prolific, sustained and often-concealed campaign to attack the Bair Hugger system. His systematic misinformation campaign about the Bair Hugger system causes and continues to drive this litigation.’’
Augustine invented the Bair Hugger system in 1987. In 2002, Augustine resigned from his position of Chief Executive Officer of Augustine Medical. Not long after, Augustine pled guilty to Medicare fraud.
In 2003, Augustine Medical, Inc. and Arizant Healthcare Inc. became wholly owned subsidiaries of Arizant, Inc., as part of a corporate reorganization.
In 2010, 3M acquired Arizant.
In the interim, Augustine set up his competing company and immediately launched a campaign to malign the Bair Hugger system. From 2010-2014, Augustine told 3M he would continue his campaign unless 3M either acquired his new company or acquired new patents related to the Bair Hugger system.
A federal judge overseeing the Bair Hugger litigation ordered Augustine to comply with 3M’s request for documents, which Augustine previously had failed to do. In its request to the court, 3M said “Augustine has failed to produce documents relating to his testing of the Bair Hugger system that found no evidence of the bacterial issues he claims, his involvement with other reports and studies attacking the Bair Hugger system, including supposedly ‘independent’ studies in which Augustine’s role was concealed...’’