SCOTUS gives 3M the cold shoulder on warming-device litigation

The logo of Down Jones Industrial Average stock market index listed company 3M
The logo of Down Jones Industrial Average stock market index listed company 3M is shown in Irvine, California April 13, 2016. REUTERS/Mike Blake
  • Company sought to reverse ruling that revived Bair Hugger MDL
  • Trials to restart in September, plaintiffs’ counsel says

(Reuters) - The U.S. Supreme Court on Monday let stand an appellate ruling that revived nearly 6,000 lawsuits over 3M’s Bair Hugger surgical warming device, clearing the way for trials to resume this fall.

3M, represented by Paul Clement of Kirkland & Ellis, said a federal judge in Minnesota had properly dismissed all claims from the multidistrict litigation (MDL) in 2019 after finding testimony from the plaintiffs’ key expert witnesses inadmissible.

U.S. District Judge Joan Ericksen said the experts had offered no scientific support for concluding that the device caused surgical-site infections.

The 8th U.S. Circuit Court of Appeals reversed that ruling last year, saying the experts’ testimony had “weaknesses” but was not “so fundamentally unsupported” that it had to be excluded.

3M’s certiorari petition derided the 8th Circuit’s analysis as “unique” and “erroneously lax.” It drew amicus support from the Product Liability Advisory Council, the National Association of Manufacturers, the U.S. Chamber of Commerce and other pro-business groups.

The high court rejected the petition without comment.

In a statement, 3M said it was "disappointed" but intends to "continue our strong defense, using scientifically backed information, to break through the misinformation being spread by plaintiffs’ attorneys."

Deepak Gupta of Gupta Wessler, the plaintiffs’ Supreme Court attorney, did not immediately respond to requests for comment. Genevieve Zimmerman of Meshbesher & Spence, plaintiffs’ co-lead counsel in the MDL, said they were “pleased but not surprised” by the Supreme Court’s order and “look forward to trying their cases to juries across the country, beginning in Missouri in September.”

One bellwether trial was held in 2018, resulting in a jury verdict for 3M.

The case is 3M Company et al v. George Amador, U.S. Supreme Court, No. 21-1100.

For 3M: Paul Clement of Kirkland & Ellis

For Amador: Deepak Gupta of Gupta Wessler

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