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.’’