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Fast growing MDL boasts bevy of local legal talent [Minnesota Layer]
We are very proud of our own, Genevieve Zimmerman. Genevieve was featured in Minnesota Lawyer earlier this week for her work on one of the fastest growing medical device mass torts of the year.
Read the article written by Mike Mosedale below
Fast growing MDL boasts bevy of local legal talent [Minnesota Lawyer]
Some of Minnesota’s top legal talent and one of its most prominent corporations are front and center in one of the fastest growing medical device mass torts of the year.
The wave of lawsuits target 3M Corporation’s Bair Hugger product, a Shop-Vac-like device that uses forced air to keep patients warm during surgery. That’s long been regarded as a major benefit because anesthetized patients can’t regulate their temperature, which can lead to hypothermia and other complications, including an increased risk of infections.
But plaintiffs claim the Bair Hugger system actually boosts the risk of infections by spreading bacteria from the operating room floor to surgical sites. They accuse 3M and subsidiary Arizant of concealing the hazard. Last year, about 50 Bair Hugger lawsuits were consolidated into multidistrict litigation in U.S. District Court of Minnesota. By March, the filings had swelled to 260 and, as of late September, the tally had ballooned to 725.
I fully expect well over 1,000 by the end of the year and, depending on how things unfold, it could be many multiples of that,” said Genevieve M. Zimmerman of the Minneapolis personal injury firm of Meshbesher & Spence, Ltd.
Last February, U.S. District Judge Joan Ericksen named Zimmerman as co-lead counsel on the Bair Hugger MDL, along with Michael Ciresi, of the Minneapolis firm of Ciresi Conlin LLP, and Ben Gordon, of the Pensacola-based mass tort firm of Levin Papatonion. David Szerlag of Minneapolis’ Pritzker Olsen was appointed liaison counsel.
Veteran trial lawyer Jerry Blackwell, partner and chairman of Minneapolis-based litigation and trial boutique Blackwell Burke P.A., and Bridget Ahman, of Faegre Baker Daniels, are representing 3M.
Gordon and Zimmerman both served on the plaintiff’s lead counsel committee in a medical device MDL involving the Stryker Corporation’s since-recalled metal hip replacement parts. The Stryker MDL, which was also centralized in the Minnesota district, was resolved under the terms of a global settlement approved by U.S. District Judge Donovan Frank in 2014, with Stryker agreeing to a payout estimated at $1 billion.
Ciresi, who is probably the state’s best-known trial lawyer, has been a player in high profile mass torts stretching back to the 1980, when he served as lead counsel in two bellweather trials over the Dalkon Shield, a faulty intrauterine contraceptive device that rendered many users infertile before it was yanked off the market.
The Dalkon Shield litigation culminated with the establishment of $2.5 billion trust fund for about 200,000 women.
According to Zimmerman, lawyers from the 21 firms involved in the Bair Hugger MDL are now working on a protocol for selecting a bellweather case, which is scheduled to go to trial in November 2017.
Unlike many of the medical devices in mass torts, Bair Hugger, which was approved by the Food and Drug Administration in 1988, has never been recalled and remains widely used, with more than 80 percent of U.S. hospitals currently employing the product in surgical settings.
The first Bair Hugger lawsuits were brought shortly after the device’s inventor, Minnesota anesthesiologist Scott Augustine, launched a public campaign against its continued use. In particular, Augustine claimed that the Bair Hugger system, which warms patients by blowing hot air through a hose attached to blanket that is then placed over the patient, increases the risk of deep-joint infection, especially for patients undergoing orthopedic surgeries such as knee or hip replacements.
3M Corp. — which purchased Eden Prairie-based Arizant, the manufacturer of Bair Hugger, for $810 million in 2010 — insists its product is safe and says there have been no confirmed incidents of infection caused by Bair Hugger in over a quarter-century of use.
Scientific disputes aren’t the only factor complicating the litigation.
Augustine has since introduced a competing patient warming product, called a HotDog, which functions more like a high-tech electric blanket, and 3M accuses Augustine of besmirching the Bair Hugger for competitive reasons.
“It’s a difficult case but it’s a case that we think is important and that presents issues that, in our view, amount to a public health crisis,” said Zimmerman, who noted that the Bair Hugger is used an estimated 50,000 procedures every day.
By: Mike Mosedale October 6, 2016