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Bair Hugger MDL Plaintiffs
Top row: Genevieve Zimmerman and Jake Zimmerman. Bottom row, from left: Mike Sacchet, Megan Odom, Leslie O’Leary, Kyle Farrar and Gabe Assad. Genevieve Zimmerman and Mike Sacchet are Circle of Excellence honorees.

2021 Attorneys of the Year: Bair Hugger MDL Plaintiffs

A team of attorneys led by Meshbesher & Spence managed the rare feat of convincing a federal district court to reinstate litigation over a 3M Bair-Hugger product that hospitals use to warm patients before, during and after surgeries.

In August 2021, the 8th U.S. Circuit Court of Appeals agreed with plaintiffs that the district court judge who previously found their experts qualified and their opinion testimony admissible had committed clear error and abused her discretion in reconsidering that ruling. She improperly excluded plaintiffs’ experts before granting summary judgment to 3M on nearly 6,000 cases, the court found.

Plaintiffs alleged that the Bair-Hugger machines themselves harbor and grow bacteria and that the heat exhausted from the machines contaminates the sterile field in an operating room, allowing airborne pathogens, including bacteria, to cause infections. They argue the problem is particularly acute in the highly sensitive total joint replacement patient population, according to Meshbesher & Spence attorney Genevieve Zimmerman.

3M’s attorneys have previously said that 50,000 patients a day are exposed to the Bair-Hugger, which to this day lacks a warning about the risk of airborne contamination. Zimmerman expects potentially thousands of additional cases will be filed in the District of Minnesota and potentially other courts in Minnesota and across the country.

“As long as the Bair-Hugger continues to present unappreciated danger to patients, until and unless there is a warning or some other instruction or recall from 3M that the potential liability, risk is going to continue to accrue,” Zimmerman says.

The successful appellate team includes Meshbesher & Spence (Genevieve Zimmerman),Ciresi Conlin (Mike Sacchet, Leslie O’Leary, Magan Odom), Kaster, Lynch Farrar & Ball (Kyle Farrar), McDonald Worley (Gabe Assaad), and the Zimmerman Firm (attorney Jake Zimmerman, who is married to Genevieve Zimmerman).

Read more about Minnesota Lawyer’s superb class of Attorneys of the Year for 2021 here.

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