The U.S. District Court for the District of Minnesota, which is overseeing the more than 1,000 cases related to the Bair Hugger forced-air warming device, has chosen the eight cases that will serve as the first bellwether trials of the multi-district litigation.
The eight trials were selected from a group of 16 lawsuits that were chosen by either the defense or plaintiffs. The court determined that the following eight cases would be selected in the final bellwether trial pool, with either party being allowed to exercise one strike:
Kamke v. 3M Co., et al. – 16cv1225 (JNE/FLN)
Walker v. 3M Co., et al. – Ramsey County Case No. 62-cv-16-1257
Knuteson v. 3M Co. – 16cv1088 (JNE/FLN)
Collins v. 3M Co. – 16cv1188 (JNE/FLN)
Vandermade v. 3M Co. – 16cv4221 (JNE/FLN)
Skaar, et al. v. 3M Co., et al. – 16cv2969 (JNE/FLN)
Gareis v. 3M Co., et al. – 16cv4187 (JNE/FLN)
Nugier, et al. v. 3M Co., et al. – 16cv4246 (JNE/FLN)
A bellwether trial is a proceeding which allows both parties to argue their side and gauge where a jury might side on the rest of the trials. This would allow the possibility of negotiating a settlement or continuing with litigation rather than trying the more than 1,000 federal cases that were consolidated into the District of Minnesota.
The trials are expected to begin as early as February 2018.
Bair Hugger Blamed for Causing Infections
The Bair Hugger device was created in the late 1980s by Dr. Scott Augustine to keep patients warm while undergoing surgery. The device works by drawing in warmed air through a tube to a blanket that is covering the patient.
The invention changed surgical practices and quickly became widely used in hospitals throughout the United States. An estimated 80 percent of hospitals now use the forced-air warming system to keep patients from developing hypothermia.
However, patients have asserted that the Bair Hugger device is defectively designed because it allows potentially contaminated air drawn in through the system to come in contact with the patient.
In one case, plaintiff Rosie Bartel underwent knee replacement surgery in 2009 but developed a methicillin-resistant Staphylococcus aureus (MRSA) infection. After three years and dozens of follow-up surgeries, she ended up losing her leg to the infection and was given a 30 percent chance of survival.
Bartel has since become an advocate for raising awareness about the MRSA infection and thinks the Bair Hugger system could have potentially introduced the infection during her surgery.
Bair Hugger Inventor Says Device Should No Longer Be Used
One of the strongest public advocates against Bair Hugger is Scott Augustine himself, the device’s inventor.
Augustine said he would testify about the infection risk created by the machine in any trial.
“There is no question that it’s a true phenomenon. It’s happening. And it’s easy to show,” Augustine said to the Star Tribune in 2015. “With regard to orthopedic infections, a scare is what’s needed. This product should never be on another orthopedic patient.”
The controversial figure has pleaded guilty to a healthcare-related misdemeanor that resulted in a $2 million fine. He later sued Arizant, the company that sold the Bair Hugger, for the fine and millions more in salary, according to The New York Times.
Augustine has since invented an alternative to the Bair Hugger called the HotDog that he says is safer.
3M, which is now the owner of Arizant, has continued to defend its product against Augustine and plaintiffs suing for failing to warn of risks and misrepresentation. Although some studies have suggested an infection risk is present in Bair Hugger devices, others say that they are biased or unreliable. 3M has continued its commitment to defending the product against lawsuits.
“3M will vigorously defend the product and the science against these unwarranted lawsuits,” company spokeswoman Donna Fleming Runyon said. “We think it’s unfortunate that the plaintiffs’ attorneys are using bad science to blame their clients’ infections on a device that has helped so many people.”