Defense verdict upheld in bellwether over 3M surgical blanket

The logo of 3M is seen at the 3M Tilloy plant in Tilloy-Lez-Cambrai, France, August 18, 2019. REUTERS/Pascal Rossignol

A federal appeals court on Tuesday upheld a verdict in favor of 3M Co in a lawsuit claiming the company's Bair Hugger surgical warming device caused a patient's infection, the only such case to go to trial so far out of nearly 6,000 pending in a multidistrict litigation.

The 8th U.S. Circuit Court of Appeals panel rejected arguments by the patient Louis Gareis and his wife, Lillian Gareis, that the trial was unfair because of rulings by U.S. District Judge Joan Ericksen in Minneapolis limiting the evidence they were allowed to present. The panel found those rulings were not relevant to the trial's outcome.

The decision comes the day after the circuit revived the MDL, which Ericksen had dismissed, finding that Ericksen wrongly excluded the plaintiffs' key expert witnesses after hearing them testify at the Gareises' trial.

3M, which is represented by Aaron Van Oort of Faegre Drinker Biddle & Reath, said in a statement that it was pleased with Tuesday's decision.

"At 3M, we rely on science, and the science supports the clinical efficacy and safety of the Bair Hugger system," the company said.

Genevieve Zimmerman of Meshbesher & Spence, who represents the Gareises, did not immediately respond to a request for comment.

The Bair Hugger consists of a central unit, hose and blanket, and it blows warm air over a patient during surgery. The device is intended to decrease bleeding, improve recovery times and lower the risk of infections.

Plaintiffs in the MDL claim that the device can transfer antibiotic-resistant bacteria into open surgical wounds, causing infections. The Gareises allege that Louis Gareis developed an infection following a 2010 hip replacement surgery.

Prior to the 2018 bellwether trial, Ericksen granted 3M summary judgment on the Gareises' failure-to-warn claim, concluding the company lacked knowledge of the product's alleged danger that would give it a duty to warn. That left only a strict liability claim.

Ericksen also precluded the Gareises from introducing evidence at trial about 3M's knowledge of the alleged risk or about any alternative designs for the product except for one other product on the market.

In its verdict, the jury found that the Gareises failed to prove that the Bair Hugger caused the infection. The Gareises argued on appeal that the judge erred in granting summary judgment on their failure-to-warn claim and in excluding their evidence.

However, Circuit Judge Raymond Gruender wrote Tuesday that the Gareises had not been prejudiced because the jury found that the Bair Hugger did not cause the infection. That meant evidence about 3M's knowledge or possible alternative designs would likely not have changed the verdict and that the failure-to-warn claim would not have fared any better than the strict liability claim, he said.

Gruender was joined by Circuit Judges Jane Kelly and Steven Grasz.

The case is Gareis v. 3M Co, 8th U.S. Circuit Court of Appeals, No. 18-3553.

For the Gareises: Genevieve Zimmerman of Meshbesher & Spence

For 3M: Aaron Van Oort of Faegre Drinker Biddle & Reath

Note: This story has been updated to correct the dates of the jury verdict and Gareis's surgery.

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.