On October 13, 2022, a Jackson County (Independence), Missouri jury rejected personal injury claims by the Plaintiff in Katherine O’Haver v. Anesthesia Associates of Kansas City PC et al., Case No. 1816-CV30710. Plaintiff claimed that 3M Co.’s Bair Hugger Forced Air Warming System blanket caused her to develop a joint infection after the product was used on her at a Missouri hospital during a November 2016 left total knee arthroplasty surgery.
Plaintiff filed suit in November of 2018, but 3M was not named until an Amended Petition was filed in December of 2018, adding 3M and its alleged wholly owned subsidiary Arizant, previously known by Augustine BioMedical, Inc. The Plaintiff claimed that contaminants entered her wound during a surgery and caused a deep joint infection, which required her to have additional operations and risks of additional complications.
The product, Bair Hugger Forced Air Warming System, is an FDA approved medical device that is designed to prevent and treat unintended hypothermia in individuals undergoing surgery. The device is placed over the patient during a surgery and its central heating unit draws in air through a filter that warms the air and blows the newly warmed air out through the devices’ hose into the perforated blanket that is over the patient.
Specifically, in the Amended Petition, Plaintiff claimed that “[s]cientific studies have shown that as this warmed air rises against the downward airflow in the operating room, it deposits bacteria carried on particles from the non-sterile portions of the operating theater to the sterile surgical field and the surgical site.” As a result, as against 3M and Arizant, Plaintiff made claims for Strict Liability: Defective Design and Failure to Warn, Negligence, Breach of Express and Implied, Violation of the Missouri Merchandising Practices Act, Negligent and Fraudulent Misrepresentation, and Fraudulent Concealment.
3M is not a stranger to claims against it concerning this device. It has, in fact, faced claims concerning this device’s safety and efficacy in recent years, including multidistrict litigation (MDL) where those plaintiffs also alleged they developed infections as a result of the product’s use during their surgeries. We previously reported on the MDL litigation here and here.
In August of 2021, the Eighth Circuit reached two decisions, both for and against 3M. In sum, one decision revived thousands of claims in a separate MDL against 3M concerning this device where the Court actually reversed the MDL Court’s decision to exclude three of plaintiffs’ medical experts’ opinion testimony that the device caused bacterial infections, along with the grant of summary judgment to 3M. While 3M petitioned the U.S. Supreme Court for further review of the decision, the Court declined to hear the appeal. The other decision, issued the next day, affirmed 3M’s win against claims for Strict Liability: Design Defect and Failure to Warn, finding that the Court was right to exclude certain evidence that did not show causation as to the joint infection alleged and allow one of 3M’s expert’s to testify about operating room airflow.
While 3M came out victorious in the O’Haver matter, it was not without intensive motion practice during trial, including 3M’s Motion for Mistrial and Directed Verdict (both Motions were overruled). We can, however, anticipate that there will be an appeal made by the Plaintiff. As a result, this battle may not be over for 3M in Missouri state court.