Bair Hugger Warming Blanket Update

Judge Denies Summary Judgment and Any Exclusion of Plaintiffs’ Expert Witnesses: Cases Will Proceed To Trial

On December 13, U.S. District Judge Joan Ericksen denied Defendants’ Daubert motions seeking to exclude expert witnesses in the litigation over 3M’s Bair Hugger warming blanket. All Plaintiff experts can be presented in the first bellwether trial scheduled for next year. Defendants’ motion for summary judgment was also denied. These cases will now proceed to bellwether trials.

Claims About the Bair Hugger Warming Blanket

What the Plaintiffs Claim

Plaintiffs’ expert witnesses include engineering, regulatory, and medical experts who testify in support of Plaintiffs’ assertions that the use of the Bair Hugger increases the risk of infections. They stated that pathogens may be stirred up by the Bair Hugger warming blanket thereby increasing the risk of hip and knee replacement patients developing deep joint infections. There is even a computational fluid dynamics model demonstrating how contamination of the deep joint space would be caused by the use of the Bair Hugger in the operating room.

What the Defendants Claim

3M’s legal team claimed Plaintiff’s expert opinions lacked scientific credibility and therefore filed a motion to exclude these experts. Defendants moved to exclude seven experts, while the Plaintiffs moved to exclude 13.

Daubert Motions Denied

Judge Ericksen denied these motions through the application of the Federal Rule of Evidence 702 standard that “the Court need only exclude expert testimony that is so fundamentally unsupported that it can offer no assistance to the jury.” Defendants had also moved for summary judgment under the argument that exclusion of Plaintiffs’ experts under the Daubert standard would render Plaintiffs’ case unsupportable. Given Judge Ericksen’s denial of Defendants’ Daubert motions, she similarly denied Defendants’ Motion for Summary Judgment.


The first bellwether trial is scheduled to begin May 14, 2018.

Our Involvement

GoldenbergLaw Partner Noah Lauricella is a member of the Plaintiffs’ Steering Committee and Co-Chair of the PSC’s Bellwether Committee. Contact Noah Lauricella for questions about the Bair Hugger warming blanket.

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