More and more cases fall by the wayside

Plaintiff’s attorneys drop next bellwether case before trial

Four bellwether cases already dismissed

Plaintiff’s attorneys have dismissed another bellwether case slated for trial in the litigation involving the 3M™ Bair Hugger™ system, marking the fourth such case to be dismissed before ever coming to trial.

On July 10, attorneys for Laura Hives asked a Minnesota federal court to dismiss the case. Hives, who claimed she contracted an infection during a July 2015 surgery, and is represented by Martin Crump of Davis & Crump in Gulfport, Miss., did not state a reason for seeking the dismissal.

The litigation involving the Bair Hugger warming system is consolidated in a multidistrict litigation (MDL) proceeding in Minneapolis. In an MDL, the court tries cases that are emblematic of the other cases in the MDL. These are known as bellwether cases, and the outcomes of these cases can be used to help determine how to best resolve the remaining claims.

The dismissals support 3M’s position that none of these cases have merit. Every lawsuit filed to date relies on a handful of studies supported by a 3M competitor, and every one of those studies acknowledges that there is no proof the Bair Hugger system causes infections.

In the Bair Hugger litigation, attorneys for the plaintiffs and 3M have undergone two rounds of selecting bellwether cases. In each round, attorneys for the plaintiffs and 3M first selected a pool of 16 cases, which was ultimately narrowed further.

In the first bellwether pool, plaintiff’s attorneys dismissed three cases before trial and one was removed from the bellwether pool. Only one case in the first pool has gone to trial, and a jury in May took less than two hours to find in favor of 3M.

Because of the bellwether dismissals, attorneys from both sides nominated a second group of cases to serve as the next round of bellwether trials. Hives, which was one of those cases and one of the two cases next slated for trial, is now dismissed by the plaintiff’s attorneys.

The next bellwether case slated for trial is Axline v. 3M and is scheduled to begin December 3, 2018.

Court: plaintiffs can’t move bellwether cases out of Minnesota

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.’’

More than 400 lawsuits dismissed to date

More than 400 lawsuits have been dismissed in the litigation involving the 3M™ Bair Hugger™ warming system.

Nearly all of the dismissals, which now number 464, occurred prior to the recent jury verdict in favor of 3M. On May 30, 2018, a federal jury deliberated for less than two hours in the first bellwether case involving the Bair Hugger system before reaching its verdict. The jury determined that the patient warming device is not defectively designed and did not cause the plaintiff’s infection.

The large number of case dismissals are not a surprise to 3M’s legal team, which expected that a significant number of the lawsuits filed in the multidistrict litigation would not meet the proper legal standards. More dismissals are expected.

The dismissals result from a variety of reasons:

• Plaintiffs are unable to substantiate their claims.
• Plaintiff’s attorneys have voluntarily dismissed cases, including bellwether cases they nominated for trial.
• The Bair Hugger system may not have been used during surgery.
• Plaintiffs did not comply with orders of the court.

Federal Jury Rules in Favor of 3M

Verdict affirms science behind 3M Bair Hugger System

Today, a federal jury ruled in favor of 3M, concluding that the 3M™ Bair Hugger™ patient warming system did not cause the plaintiff’s infection. The jury deliberated less than two hours before reaching its verdict..

3M is grateful that the jury put science first. This verdict affirms the science behind the 3M Bair Hugger system, which has been proven to be a safe and effective way to warm patients during surgery. Many clinical studies have shown that maintaining normal body temperature – through the use of forced-air warming – reduces the risk of surgical-site infections, decreases the risk of post-operative heart attacks, reduces blood loss, and helps patients recover faster following surgery. It is noteworthy that just last August, the U.S. Food and Drug Administration recommended that healthcare providers continue to use warming devices, including forced-air devices such as the Bair Hugger system, when clinically warranted. In the past three decades, more than 200 million patients have been successfully and safely warmed by 3M’s patient warming products.

This litigation stems directly from a decade-long campaign by a competitor to malign the technology behind the Bair Hugger system..

You can read a news story about the verdict here.

More than 300 lawsuits dismissed to date

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

State Court grants summary judgment to 3M, dismissing 61 lawsuits

Ruling notes Scott Augustine role in litigation

3M won a major victory on January 8, 2018, when a state court granted summary judgment in the litigation involving the 3M™ Bair Hugger™ warming system.

The ruling dismisses 61 lawsuits that had been filed by Minnesota plaintiffs who claimed the warming device had caused their infections.

In its 19-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, who has waged a decade-long campaign to malign the Bair Hugger warming system by claiming it increases the risk of infection. Augustine’s company makes a competing product, the HotDog warming system.

In the ruling, the court said: “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. Perhaps in response to those threats and the litigation that has followed, the FDA reaffirmed the generally accepted science regarding warming devices in its August 2017 letter to health care providers.”

While the ruling does not affect more than 4,000 lawsuits filed in Minnesota federal court, 3M said the decision should further calm any fears provoked by Augustine.

“This ruling affirms our position that there is no generally accepted science that the 3M™ Bair Hugger™ warming system causes infections,” 3M said.

Last month, the Minnesota federal court overseeing the multi-district litigation said it would allow plaintiffs to present their evidence at trial. 3M intends to show the serious flaws in the plaintiffs’ research during the trial.

The first bellwether case is set for trial in May 2018.

Both the state and federal courts last summer denied plaintiffs’ request to seek punitive damages in the bellwether trials, noting that plaintiffs failed to provide scientific proof that the Bair Hugger system causes surgical site infections and failed to show that 3M disregarded patient safety.

In the state court ruling, District Court Judge William H. Leary III detailed a history of bad behavior by Augustine, including a conviction for Medicare fraud and repeated warnings from regulators about his marketing tactics. Judge Leary also noted that Augustine worked closely with Kennedy Hodges, the law firm that filed the first complaints against the Bair Hugger system and remains on the executive committee of plaintiffs’ counsel.

You can read the full ruling here.

Third bellwether case dismissed; just two of initial six bellwether cases remain

Another bellwether case has been voluntarily dismissed from the 3M Bair Hugger multi-district litigation.

The law firm of Brown & Crouppen, which has aired more than 2,000 advertisements seeking patients who contracted surgical site infections, agreed to dismiss a lawsuit it filed on behalf of Kurtis and Debbie Skaar against 3M.

Brown & Crouppen, claimed that Mr. Skaar developed an infection in 2014 as a result of the use of the Bair Hugger patient warming system. They dismissed the case when it was revealed that the Bair Hugger device was not used in the surgery.

Of the initial six cases chosen for the final bellwether trial pool, just two remain. Three have been voluntarily dismissed from the overall litigation; and one was de-selected as a bellwether case.

More than 4,000 lawsuits have been filed as part of the multi-district litigation. The federal court agreed to hear six initial cases.

The voluntary dismissals of the three bellwether cases – which were initially selected as representative of the group of lawsuits – lend support to the reality that multi-district litigations often attract a significant number of lawsuits with dubious, even frivolous merits.

The first bellwether trial, Gareis v. 3M, is slated for April 2018 in Minnesota federal court. Gareis is a South Carolina man who claims to have contracted an infection during a total hip replacement in 2010.

False information behind Augustine study cited by plaintiffs in lawsuits

In a recent self-published study, 3M competitor Scott Augustine used data from a New York hospital to claim that the use of his conductive warming device resulted in fewer infections during joint surgeries than the use of the market-leading 3M™ Bair Hugger™ warming system.

But there is a critical flaw in Augustine’s study: the New York hospital has testified that it never used the Bair Hugger warming system.

The Clinical Chair of the Department of Anesthesiology at South Nassau Communities Hospital in New York testified in a sworn affidavit on Sept. 29, 2017, that his hospital actually was not part of any “study’’ and that he found “multiple errors’’ in Augustine’s paper, including the fact that the hospital didn’t use the Bair Hugger system.

South Nassau is one of three medical facilities cited by Augustine in a paper he paid to publish earlier this year in an Italian journal, Orthopedic Reviews.

The other two medical facilities also have provided information that significantly undermines the study’s credibility and Augustine’s claims. Ridgeview Medical Center of Minnesota stated that there is no data to support a direct correlation to Augustine’s device and the hospital’s reduced infection rates, contrary to Augustine’s claims. Ridgeview also publicly stated that it never authorized Augustine to use its data in any study. Like the data provided by South Nassau, the data provided by the other two facilities were selectively used in a way that flatly contradicted the stated protocol. The study creates the impression that there is a difference in infection rates and this is not supported by the totality of the data.

The latest revelations are yet another setback for plaintiffs’ attorneys in their campaign against 3M and the market-leading Bair Hugger system. A key expert used by plaintiffs’ lawyers has testified that he is relying on Augustine’s paper and its findings to support his beliefs.

In the South Nassau affidavit, the chairman of anesthesiology Jonathan Singer testified that Scott Augustine’s son Garrett asked for data in September 2014 on hip and knee replacement surgery at the hospital. Garrett Augustine was the sales representative for Augustine Temperature Management, maker of the HotDog warming blanket. Singer said he provided infection data on total hip surgeries from January 2013 to June 2014, but provided no data on knee surgeries. He said Garrett Augustine never asked if any changes were made to operating room practices or antibiotic use.

Among the multiple errors cited by Singer:

• Augustine wrote that “Only hospitals reporting that no other significant changes were made to their surgical and antibiotic prophylaxis protocols during the study qualified to be part of the study.’’ But Singer said “South Nassau Communities Hospital was not aware nor did we knowingly participate in any ‘study’; we did not seek IRB approval before releasing the data as to our knowledge we were not participating in a study; we were not asked about any variables in practice that occurred during the dates in question and as stated above, multiple protocols were changed during the timeframe when data was provided to Mr. Garrett Augustine.’’
• Singer noted that during the so-called study period, South Nassau Communities Hospital implemented multiple initiatives to decrease the rate of infection. They included:
  • Standardizing cleansing of a patient’s skin before surgery
  • Re-educating staff on proper draping practices
  • Humidity control in the operating room
  • Standardizing post-operative dress changes
  • New wound-care instructions.

Singer was never informed that Augustine intended to use the data for a study. “At no time did Mr. Garrett Augustine inform me that he was going to use the data provided in any article or written publication nor did he ask my permission to do so.’’

FDA: Keep using patient warming devices, including forced-air technology

The U.S. Food and Drug Administration today issued a letter reminding healthcare providers that it continues to recommend patients be warmed during surgery when clinically warranted.

The FDA specifically mentioned that its recommendation includes the continued use of forced-air warming devices. The 3M™ Bair Hugger™ warming system is the world’s leading forced-air warming product.

The FDA said it recently became aware that some providers and patients are foregoing the use of forced-air warming because of concerns about a possible increased risk of surgical site infections. Those concerns have been driven by a 3M competitor and a group of plaintiffs’ attorneys, who are promoting a theory that forced-air warming devices such as the Bair Hugger system lead to an increased risk of surgical site infections.

The FDA, which regulates medical devices, said it has thoroughly reviewed available data and “has been unable to identify a consistently reported association between the use of forced air thermal regulating systems and surgical site infection.”

You can read the letter here.

You can read an update from the Minneapolis Star Tribune here.

More than 100 lawsuits dismissed to date

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.

In a sign of a rush to file lawsuits, more than 100 cases against the 3M™ Bair Hugger™ warming system already have been dismissed, with more expected in the coming months.

3M is vigorously challenging more than 3,300 lawsuits filed in the past 18 months, all of which 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 and has been largely generated by a 3M competitor.

Just last month, a federal court denied a motion by plaintiffs’ attorneys to allow them to add claims for punitive damages to key lawsuits in the case. The court said there was no proof that 3M disregarded the interests of patients, and it stated that the plaintiffs’ own studies failed to show that the Bair Hugger device causes infections.

The dismissals result from a variety of reasons:

• The Bair Hugger system may not have even been used during surgery.
• People are unwilling or unable to continue with their claims.
• Plaintiffs failed to properly follow through on their claims.

The first trial in the Bair Hugger system multi-district litigation is set to begin Feb. 26, 2018.