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