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Court Specifies 8 Cases for Bair Hugger Bellwether Trial Pool

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In December 2015, all federally filed Bair Hugger warming blanket lawsuits were centralized before one court in the District of Minnesota. Since then, both parties have been working toward the selection of a few cases that will go to trial first, to determine how juries may react to the evidence.

According to a pretrial order dated May 30, 2017, the court has selected eight cases that will represent the final bellwether trial pool. These cases will be eligible to go on to trial, though Judge Joan N. Ericksen, who is overseeing the proceedings, indicated that the parties may each exercise one strike.

Parties Argue Over Which Cases Should Be Included in Bellwether Trials

In general, all lawsuits filed in this litigation involve claims that plaintiffs developed infections following hip or knee replacements in which surgeons used the Bair Hugger warming system. The infections required additional medical procedures, including revision surgery to repair or replace the implants.

The two sides have disagreed over three cases in the trial pool.  For example, the plaintiffs didn’t want to include a case because the patient was diagnosed with the infection after a surgical wound ruptured (medically termed “dehiscence”). In a letter to the judge dated May 24, 2017, the defendants argued that the rupture should not prevent the case from being selected, because dehiscence is not a cause of infection.

The plaintiffs challenged another case because the plaintiff had an additional procedure between the time his knee was replaced and his diagnosis of infection. The procedure was an arthroscopy to remove scar tissue. The defendants argued this fact should not affect the case’s inclusion in the bellwether pool, as people with joint replacements “will often times have many problems requiring additional procedures on their joints.”

In a May letter to the judge, the plaintiffs suggested that a new case nomination should replace one of the eight approved by the court because the plaintiff had been diagnosed with cancer, and would be in treatment for at least eight weeks.

The parties will continue with case discovery and challenges to expert witness testimony. The first bellwether trial is scheduled to begin on February 8, 2018.

Number of Bair Hugger Lawsuits Continues to Increase

Currently, there are over 1,500 cases pending in the Bair Hugger MDL.

The FDA first approved Bair Hugger warming blankets in 1987 for warming patients during surgery. The blankets are connected to a portable heater that blows air into them, inflating them as they rest over (or under) the patient. This helps keep the patient warm throughout the surgical procedure.

Plaintiffs claim the blanket is defectively designed, with the airflow allowing contaminants in the surgery room to potentially contaminate an exposed surgical site. These contaminants can cause serious infections, sometimes requiring additional surgical procedures and potentially leading to knee or hip replacement failure.

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