Eighth Circuit Revives Surgical Heater MDL Case

In an opinion issued Monday, the Eighth Circuit Court of Appeals reversed the court below in a multidistrict case brought by patients suffering from joint infections that they say were caused by a patient warming device sold by defendant 3M, used to stave off hypothermia during surgical procedures. The opinion reverses the MDL court’s grant of summary judgment in favor of 3M.

The opinion explained that the medical device in question , the Bair Hugger, was invented by Dr. Scott Augustine, who eventually had to leave his company due to a Medicare fraud investigation. The company was later acquired by 3M, and the opinion said Dr. Augustine invented a new device for the same purpose and “began a campaign to discredit his old invention and promote his new one,” leading to the MDL at issue.

After a trial in a bellwether case favored 3M, the MDL court excluded the plaintiff’s medical expert witnesses, arguing that there was “too great an analytical gap” between the experts and the scientific community at large. The plaintiffs appealed the exclusion and the subsequent grant of summary judgment in favor of 3M.

The Eighth Circuit opinion, written by Judge Raymond Gruender, found that the underlying ruling erred in excluding the expert witnesses. The appellate court found that, while the expert testimony had its weaknesses, “redress for such weaknesses lies in cross-examination and contrary evidence rather than exclusion.”

The opinion rejected other evidentiary requests made by the plaintiffs, but restored the multidistrict litigation against 3M. 3M was represented by Blackwell Burke P.A. and Faegre Drinker Biddle & Reath LLP. The plaintiffs were represented by eight different firms.