A federal appeals court 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 came 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.

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.

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 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.


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