3M Asks The Supreme Court To Review Eighth Circuit Decision Allowing Expert Testimony In Surgical Warming Blanket MDL

• Published date: 01 March 2022
• Subject Matter: Consumer Protection, Food, Drugs, Healthcare, Life Sciences, Product Liability & Safety, Biotechnology & Nanotechnology
• Law Firm: Winston & Strawn LLP
• Author: Joelle Ross and Matthew Saxon

Earlier this month, 3M filed a petition for writ of certiorari requesting that the U.S. Supreme Court review an Eighth Circuit opinion reversing the district court and allowing expert testimony in a lawsuit involving 3M's commonly used surgical warming blankets. In re Bair Hugger Forced Air Warming Devices Prod. Liab. Litig., 9 F.4th 768 (8th Cir. 2021).

In In re Bair Hugger, plaintiffs allege that they suffered periprosthetic joint infections from the use of 3M's surgical warming blanket, known as the Bair Hugger, during their orthopedic-implant surgeries. Id. at 773-74. The lawsuits, now nearly 6,000 in total, were consolidated into an MDL before the District of Minnesota. Id. at 774. At the close of discovery, 3M moved to exclude plaintiffs' three general-causation medical experts and their engineering expert. Id. at 775. The district court denied 3M's motion to exclude and proceeded with the first bellwether trial. Id. After a two-week trial resulting in a jury verdict for 3M, 3M moved for reconsideration of the district court's decision on its motion to exclude the expert testimony. Id. The district court granted 3M's motion and excluded plaintiffs' experts because it found "too great an analytical gap between the literature and the experts' general causation opinions." Id. at 775-76.

On appeal, the Eighth Circuit Court of Appeals reversed the district court's decision. While the Eighth Circuit agreed that "there are weaknesses in the factual basis for Plaintiffs' medical experts' general-causation opinions," it nevertheless held that "the MDL court committed a clear error of judgment on the basis of the record before it in finding that the experts' general-causation opinions were so fundamentally unsupported that they had to be excluded." Id. at 787-88.

3M now petitions for writ of certiorari before the U.S. Supreme Court.

First, 3M argues that the standard of admissibility of expert testimony applied by the Eighth Circuit'the "so-fundamentally-unsupported" that "it can offer no assistance to the jury" standard'is an incorrect standard predating Supreme Court precedent in Daubert,¹ Joiner,² and the revisions to Federal Rule of Evidence 702. Pet. at 19-28. Such a lax standard of admissibility, 3M argues, incorrectly conflates relevancy with reliability, essentially eliminating the reliability requirement articulated in Daubert and reaffirmed in Joiner. Id. at 20-21. Under this standard, "expert testimony must be admitted unless it is 'so...