State Court grants summary judgment to 3M, dismissing 61 lawsuits

Ruling notes Scott Augustine role in litigation

3M won a major victory on January 8, 2018, when a state court granted summary judgment in the litigation involving the 3M™ Bair Hugger™ warming system.

The ruling dismisses 61 lawsuits that had been filed by Minnesota plaintiffs who claimed the warming device had caused their infections.

In its 19-page decision, the court said that “there is no generally accepted scientific evidence – and plaintiffs offer none – that the risk of infection associated with [forced air warming] is greater than that associated with patients who are not warmed during surgery.’’ In addition, the court said there is no scientific evidence that other warming devices have a lesser infection rate than forced-air warming devices.

The court pointedly noted the role played in the litigation by 3M competitor Scott Augustine, who has waged a decade-long campaign to malign the Bair Hugger warming system by claiming it increases the risk of infection. Augustine’s company makes a competing product, the HotDog warming system.

In the ruling, the court said: “As stated at the beginning of this memorandum, Scott Augustine blatantly and unapologetically threatened Defendants with negative ‘rhetoric’ and ‘studies’ with pre-determined findings to pursue a business advantage. Perhaps in response to those threats and the litigation that has followed, the FDA reaffirmed the generally accepted science regarding warming devices in its August 2017 letter to health care providers.”

While the ruling does not affect more than 4,000 lawsuits filed in Minnesota federal court, 3M said the decision should further calm any fears provoked by Augustine.

“This ruling affirms our position that there is no generally accepted science that the 3M™ Bair Hugger™ warming system causes infections,” 3M said.

Last month, the Minnesota federal court overseeing the multi-district litigation said it would allow plaintiffs to present their evidence at trial. 3M intends to show the serious flaws in the plaintiffs’ research during the trial.

The first bellwether case is set for trial in May 2018.

Both the state and federal courts last summer denied plaintiffs’ request to seek punitive damages in the bellwether trials, noting that plaintiffs failed to provide scientific proof that the Bair Hugger system causes surgical site infections and failed to show that 3M disregarded patient safety.

In the state court ruling, District Court Judge William H. Leary III detailed a history of bad behavior by Augustine, including a conviction for Medicare fraud and repeated warnings from regulators about his marketing tactics. Judge Leary also noted that Augustine worked closely with Kennedy Hodges, the law firm that filed the first complaints against the Bair Hugger system and remains on the executive committee of plaintiffs’ counsel.

You can read the full ruling here.