Court rules in 3M’s favor on VitaHEAT issue

Forced-air warming and conductive blankets
are different products, court says

The court overseeing the lawsuits against the 3M™ Bair Hugger™ warming device ruled that plaintiffs’ lawyers are not entitled to documents about another warming system that 3M distributes because they are not relevant to the case.

Plaintiffs’ lawyers had argued that VitaHEAT’s UB3 patient warming system, for which 3M is the exclusive distributor, is a “safer alternative” to the Bair Hugger system. In response, 3M pointed out that the two are actually completely different products. The Bair Hugger system delivers warmed air to patients through a perforated blanket to keep them warm before, during and after surgery. The VitaHEAT® UB3 system does not use air; instead, it transfers heat directly to the patient through skin contact, in a process known as “conductive’’ warming.

The court’s ruling is a victory in 3M’s ongoing defense of the 3M Bair Hugger System, which, by maintaining a patient’s normal body temperature, helps reduce complications of surgery and improve surgical outcomes.

Plaintiffs’ lawyers had hoped to suggest that 3M’s agreement to distribute the UB3 system is a concession that the UB3 is a “safer alternative” to the Bair Hugger system.

But 3M argued, and Magistrate Judge Franklin L. Noel agreed, that the UB3 system does not represent an “alternative design” with features that could be incorporated into the Bair Hugger system, given its fundamentally different approach to patient warming.

“The UB3 is a substantially different product that employs a fundamentally different technology, and the Bair Hugger system could not incorporate the UB3’s technology without itself becoming a fundamentally different product than it is,’’ 3M argued in court papers.

Last year 3M signed an agreement to distribute the VitaHeat UB3 unit to complement its warming offerings with products that allow greater mobility – while patients are being moved to and from the OR, for example.

The plaintiffs’ lawyers had argued that their requests for VitaHEAT documents were relevant to their claims that an “economically and technologically feasible and safer alternative design existed for the Bair Hugger, including but not limited to airflow-free warming technologies….’’

But Magistrate Judge Noel wrote that the UB3 system and the Bair Hugger system are “fundamentally different types of technology’’ and are “substantially different products.’’

3M also argued that the disclosure of UB3 documents would benefit one of VitaHEAT’s principal competitors, Augustine Biomedical, maker of the Hot Dog conductive warming blanket. Augustine Biomedical, led by Dr. Scott Augustine, has helped generate the litigation against the Bair Hugger system.

In opposition to the motion, 3M lawyers wrote: “This Court is well aware of the ongoing collaborative relationship between the Kennedy Hodges firm – which issued the subpoena to VitaHEAT – and Dr. Augustine.’’

3M said it stands behind the safety and efficacy of its products, including the 3M Bair Hugger system, which has been used to safely warm more than 200 million patients over the past 30 years.