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From Products Liability Law Daily, October 29, 2018

New trial denied over 3M’s Bair Hugger warming system

By Brian Craig, J.D.

In the first bellwether case over 3M Company’s Bair Hugger patient warming system, the federal district court in Minnesota has refused to grant a new trial after a jury returned a verdict of no liability. In the strict liability case for design defect over the warming system used during surgery that has led to multi-district litigation, the court found no showing of any prejudice based on evidentiary rulings made during trial to warrant a new trial (Gareis v. 3M Company, October 26, 2018, Ericksen, J.).

A patient filed an action against defendants 3M Company and Arizant Healthcare, Inc. for injuries allegedly sustained through use of the Bair Hugger patient warming system during his surgery. The court granted summary judgment dismissing claims for negligence, failure to warn, unfair and deceptive trade practices, misrepresentation, and unjust enrichment. The jury then returned a verdict on May 30, 2018, on the remaining strict liability claim for design defect. The patient filed a post-trial motion for a new trial arguing that the court erred in applying South Carolina substantive law and on evidentiary rulings.

Exclusion of evidence. The court examined whether the patient showed prejudice in the exclusion of certain evidence to warrant a new trial. The court recognized that an allegedly erroneous evidentiary ruling does not warrant a new trial unless the evidence, or its exclusion, was so prejudicial that a new trial would likely produce a different result. The court held that it properly excluded proffered evidence as to knowledge of the risks and utility, multiple alternative designs, and heater-cooler recalls.

South Carolina’s risk-utility test centers upon the alleged defectively designed product. The manufacturer’s mental state is not an element of a strict liability claim for design defect. As such, evidence of the manufacturer’s knowledge is irrelevant and inadmissible. Additionally, the patient cited no South Carolina authority requiring the admission of additional alternative designs. Therefore, the court found no error in the exclusion of evidence to grant a new trial.

Admission of evidence. The court then considered whether the patient showed prejudice in the court’s admission of certain expert testimony to warrant a new trial. The patient argued that the court improperly allowed expert witnesses to offer previously undisclosed opinions or exhibits and that this evidence took him by surprise without the opportunity to prepare a full cross-examination. The court ruled that the patient had access to and notice of a videotape of an airflow visualization study using fog to validate the results of an expert’s experiment. The court also ruled that the patient had access to an expert's testimony about a study because the expert cited the study in his 2017 expert report. Furthermore, the court found that the admission of the study was harmless and not prejudicial.

The court also found no error in admitting references to the FDA’s clearance of the Bair Hugger because the court found no prejudice. Additionally, there was no testimony to strike where the court restricted further questioning after a sidebar. The court twice warned the jury that questions from counsel are not evidence. These warnings cured any potential prejudice. Accordingly, the court did not err in refusing to strike the question relating to FDA references from the record. Because the court found no showing of prejudice with the admission of evidence during trial, the court denied the motion for a new trial.

The case is No. 16-4187 (JNE/DTS).

Attorneys: Ben W. Gordon, Jr. (Levin-Papantonio, PA) for Louis Gareis and Lillian Gareis. Benjamin W. Hulse (Blackwell Burke PA) and Bridget M. Ahmann (Faegre Baker Daniels LLP) for 3M Co. and Arizant Healthcare, Inc.

Companies: 3M Co.; Arizant Healthcare, Inc.

MainStory: TopStory DesignManufacturingNews MedicalDevicesNews EvidentiaryNews ExpertEvidenceNews MinnesotaNews

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