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Bair Hugger-related suffering and the future of litigation

A Michigan resident underwent hip replacement surgery in 2012 and developed an infection at the surgical site allegedly linked to the use of the Bair Hugger warming blanket. Before the patient has his day in court on the demand for damages, a panel of federal judges will hear oral arguments Dec. 3 in New Orleans on the plaintiff's motion to centralize his and other Bair Hugger lawsuits at a single multidistrict litigation court in the federal District of Minnesota.

The U.S. Judicial Panel on Multidistrict Litigation is the body that will weigh whether to centralize the cases and thus conserve the resources of the court and the parties throughout a pretrial process that would encompass many cases.

Manufacturer 3M is the primary defendant in Bair Hugger lawsuits. In many of these Bair Hugger cases, the patient suffered an infection that transcended the healing properties of antiseptics alone. The patient tends to suffer financially as well. This Michigan patient was no different.

"As a direct and proximate result of the Defendants' actions, omissions and misrepresentations," the patient's lawsuit reads, "Plaintiff suffered an infection, requiring additional surgical procedures to clean the infected area and/or remove the hip implant. Consequently, Plaintiff has suffered damaged and incurred, and will continue to incur, medical expenses as a result of using the Bair Hugger. Plaintiff has also suffered and will continue to suffer diminished capacity for the enjoyment of life, a diminished quality of life, increased risk of premature death, aggravation of preexisting conditions and activation of latent conditions, and other losses and damages. Plaintiff's direct medical losses and costs include care for hospitalization, physician care, monitoring, treatment, medications and supplies. Plaintiff has incurred and will continue to incur mental and physical pain and suffering and loss of wages and wage earning capacity."

Attorneys for the Michigan plaintiff also wrote to the court about 3M's alleged culpability.

"In a communication to the Food and Drug Administration in September 2000, Defendants represented that the Bair Hugger's filtration system meets HEPA ("High Efficiency Particulate Air") Standards," according to plaintiff's brief, which attorneys filed in the federal District of Minnesota in July. "This statement was false at the time Defendants made it and it remains false today. To meet HEPA standards, an air filter must be capable of removing 99.97 percent of all particles 0.3 microns or larger. The filter of the Bair Hugger, which is marketed as HEPA compliant, is only capable of removing less than 65 percent of all such particles. When the Defendants made these representations, they had actual knowledge of their falsity."

And before the manufacturer erred in 2000, it missed the runway of truth in 1997, according to the Michigan plaintiff's Bair Hugger lawsuit.

"In June of 1997, in a letter to the FDA, the Defendants admitted that 'air blown intraoperatively across the surgical wound may result in airborne contamination,'" the brief reads. "The Defendants addressed this flaw in their products by making further misrepresentations to the FDA when they stated that the risk of contamination by air flow is obviated because all 'Bair Hugger Blankets designed for use in the operating room feature a tape barrier which prevent [sic] air from migrating toward the surgical site.' That statement by the Defendants was and is patently false. A number of Bair Hugger blankets marketed as safe for use in surgeries do not utilize a taped edge at all. Instead, those blankets blow contaminated air directly toward the surgical field."

The panel of judges will decide the fate of 14 Bair Hugger lawsuits that patients have filed in six different federal judicial districts. An axiom of centralization is that many more cases, with fact patterns similar to those of this Michigan man, will be filed.

No matter where the cases are tried - and no matter where the patient lives - the product liability attorneys at Reich & Binstock will fight for justice. They have a proven track record and may be reached for a free consultation at 1-866-LAW-2400.

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