For about a year, we’ve been wearing masks covering our face to protect us from airborne transmission of COVID-19. The shortage of masks and other protective gear for health care practitioners raised vehement alarms throughout the country. News accounts have demonstrated how the virus moves through the air.
In the multi-district litigation venued in Minnesota known as the Bair Hugger litigation, the plaintiffs argue that surgical patients are infected when the forced-air warming blanket brings contaminants to the body. Manufacturer 3M in Maplewood denied any liability. The defendants argued that the plaintiffs’ expert witness evidence was inadmissible because the scientific foundation didn’t pass muster under Daubert, which says that it must be generally accepted in the field. U.S. District Court Judge Joan Ericksen agreed, excluded the plaintiffs’ four causation experts and dismissed the case. A Minnesota state case was dismissed on similar grounds.
The irony of litigating the summary judgment on the Bair Hugger during a pandemic is not lost on Meshbesher & Spence attorney Genevieve Zimmerman, co-lead counsel.
The plaintffs’ experts demonstrated the impact of the Bair Hugger in an operating room, showing the effect of the air flow. “We think the science is generally accepted,” Zimmerman said, and that’s the argument that will be made at the 8th Circuit at a date to be determined. There are four separate appeals fully briefed and a motion is pending at the court to have the cases all assigned to one panel, Zimmerman said.
Zimmerman is also co-lead counsel for plaintiffs in In re Smith & Nephew Birmingham Hip Resurfacing Products Liability pending in the District of Maryland. The MDL includes claims brought on behalf of patients who allegedly required revision surgery as a result of defective BHR product. Plaintiffs have successfully defeated a motion to dismiss based on preemption by FDA premarket approval. It is scheduled for trial in March.
If the Maryland trial goes ahead, it may be conducted remotely, and the 8th Circuit Bair Hugger argument likely will be remote.
As the cases wind on, 3M will continue to produce N95 masks.
Like this article? Gain access to all of our great content with a month-to-month subscription. Start your subscription.