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SCOTUS gives 3M the cold shoulder on warming-device litigation

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The logo of the Down Jones Industrial Average 3M stock index listed company is displayed in Irvine, California April 13, 2016. REUTERS/Mike Blake

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  • The company sought to overturn the decision that revived Bair Hugger MDL
  • Trials to resume in September, plaintiffs’ lawyer says

(Reuters) – The U.S. Supreme Court on Monday overturned an appeal ruling that revived nearly 6,000 lawsuits over 3M’s Bair Hugger surgical warming device, paving the way for trials to resume this fall.

3M, represented by Paul Clement of Kirkland & Ellis, said a federal judge in Minnesota correctly dismissed all of the Multidistrict Litigation (MDL) claims in 2019 after ruling the testimony of plaintiffs’ key expert witnesses inadmissible.

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U.S. District Judge Joan Ericksen said experts offered no scientific support for concluding the device caused surgical site infections.

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The US 8th Circuit Court of Appeals overturned that decision last year, saying the expert evidence had “weaknesses” but was not “so fundamentally unsubstantiated” that it should be excluded.

3M’s certiorari motion ridiculed the 8th Circuit’s analysis as “unique” and “erroneously lax.” It has garnered amicus support from the Product Liability Advisory Council, the National Association of Manufacturers, the US Chamber of Commerce and other pro-business groups.

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The high court dismissed the petition without comment.

In a statement, 3M said it was “disappointed” but intends to “continue our strong defense, using scientifically substantiated information, to break the misinformation disseminated by plaintiffs’ attorneys.”

Deepak Gupta of Gupta Wessler, the plaintiffs’ Supreme Court attorney, did not immediately respond to requests for comment. Genevieve Zimmerman of Meshbesher & Spence, plaintiffs’ co-lead counsel at MDL, said she was “pleased but not surprised” by the Supreme Court’s order and “looks forward to trying their cases before juries across the country, starting in Missouri in September.”

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A landmark trial took place in 2018, resulting in a jury verdict for 3M.

The case is 3M Company et al v. George Amador, United States Supreme Court, No. 21-1100.

For 3M: Paul Clément of Kirkland & Ellis

For Amador: Deepak Gupta by Gupta Wessler

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