Gareis v. 3M Company et al

Filing 111

ORDER: Defendants' Motions to exclude expert testimony [Dkt. Nos. 32 , 45 ] are DENIED. Defendants' Motion for summary judgment [Dkt. No. 22 ] is GRANTED IN PART and DENIED IN PART. Gareis's Motion [Dkt. No. 41 ] is GRANTED IN PART and DENIED IN PART. (Written Opinion) Signed by Judge Joan N. Ericksen on 4/13/2018. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Louis & Lillian Gareis,
Plaintiffs
Case No. 16-cv-4187 (JNE/FLN)
ORDER

v.
3M Company &
Arizant Healthcare, Inc.,
Defendants.

On April 12, 2018, the Court heard argument on the parties’ case-specific
dispositive Motions in this case, the first scheduled bellwether trial of in re Bair Hugger
Forced Air Warming Devices Products Liability Litigation. The parties’ arguments were
well-developed on the papers and at the Hearing. The Court disposes of the Motions
below.
The Court DENIES Defendants’ Motion to exclude expert testimony by Said
Elghobashi [Dkt. No. 45]. Although Elghobashi proposes to testify about squamespreading in a hypothetical operating room that differs from Gareis’s factual operating
room, those differences are neutral or adverse to his opinion that Bair Hugger use can
spread squames to the prosthetic joint while that joint is exposed during joint-replacement
surgery. And, although Elghobashi disclosed his report late, Defendants were not
prejudiced. For the most part, Elghobashi disclosed his proposed testimony in his timely
report on general causation. The late report differs only in that it assumes a lesser flow
rate of air from the Bair Hugger and a lower temperature of that air.
The Court DENIES Defendants’ Motion to exclude expert testimony by Michael
J. Stonnington & William R. Jarvis [Dkt. No. 32]. Contrary to Defendants’ arguments,

Stonnington and Jarvis may rely on Gareis’s medical records to rule out alternative
causes as less likely. It is not required evidentiary foundation for their testimony that
they rule out unknown factors or consider adverse conclusions, including what Gareis’s
treating physicians might have concluded.
For Defendants’ Motion for summary judgment on all claims [Dkt. No. 22], the
Court applies South Carolina law. Minnesota choice-of-law factors favor South Carolina
or are neutral. First, predictability favors South Carolina because Defendants shipped the
accused products into South Carolina and Gareis could have expected any claims arising
from his surgery in South Carolina to be governed by its law. See Mooney v. Allianz Life
Ins. Co. of N. Am., 244 F.R.D. 531, 536 (D. Minn. 2007) (considering “whether the
choice of law was predictable before . . . event giving rise to the cause of action”).
Second, South Carolina’s governmental interests dominate Minnesota’s interest in
policing local manufacturers. See Schwartz v. Consol. Freightways Corp. of Del., 221
N.W.2d 665, 668 (Minn. 1974) (weighing governmental interests). South Carolina has
created causes of actions, though limited by statute, to compensate its citizens and
regulate manufacturers who profit from its markets, so, here, its interests outweigh the
forum state’s. South Carolina’s statute of limitations likewise forces its citizens to be
diligent in pursuing their legal claims. State ex rel. Condon v. City of Columbia, 528
S.E.2d 408, 413-14 (S.C. 2000) (holding that statutes of limitations “are designed to
promote justice by forcing parties to pursue a case in a timely manner. Parties should act
before memories dim, evidence grows stale or becomes nonexistent, or other people act
in reliance on what they believe is a settled state of public affairs.”). Gareis should not be
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able to escape South Carolina policy by having Minnesota law apply to his claims. Cf.
Fluck v. Jacobson Mach. Works, Inc., 1999 WL 153789, at *3 (Minn. Ct. App. Mar. 23,
1999) (unpublished) (denying defendant benefit of state’s statute of repose because,
“Unlike a tort statute of limitations . . . , the statute of repose prevents the cause of action
from accruing in the first place.”).
The other choice-of-law factors are neutral. Both states have “sufficient contacts
with an interest in the facts . . . being litigated.” See Myers v. Gov’t Emp. Ins. Co., 225
N.W.2d 238, 242 (Minn. 1974). Gareis argued that the remaining factors are not
relevant.
The Court GRANTS IN PART Defendants’ Motion for summary judgment as to
Defendants’ lack of a duty to warn. As of Gareis’s surgery, the available scientific or
medical data would not have alerted a reasonable medical-device manufacturer that the
Bair Hugger could cause a prosthetic-joint infection. Even if prophylactic as to thenconceivable risks, Gareis’s other cited documents are not scientific or medical data that
would trigger a duty to warn. Summary judgment is GRANTED as to counts 1, 4-11, 14
of Gareis’s claims.
The Court DENIES IN PART Defendants’ Motion for summary judgment as to
the other grounds. First, Gareis may present the TableGard to the jury as embodying an
alternative design. By warming patients conductively, the TableGard does not spread
squames by disrupting operating-room airflow like Elghobashi describes. As of 2008, the
TableGard was feasible. The FDA cleared it then as substantially equivalent to the Bair
Hugger based on performance and safety testing. Weighing its utility and risk as
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compared to the Bair Hugger, the jury may decide whether the TableGard embodies a
reasonable alternative design. Second, although Gareis sued more than three years after
his prosthetic-joint infection was diagnosed, the jury may decide whether Gareis
reasonably relied on advice from his orthopedic surgeon that prosthetic-joint infections
sometimes happen even without fault. See True v. Monteith, 489 S.E.2d 615, 617 (1997).
Third, the testimony of Stonnington and Jarvis creates a fact issue of whether, more likely
than not, a Bair Hugger caused Gareis’s prosthetic-joint infection. The other grounds are
moot because summary judgment is granted as to the claims to which they pertain.
The Court DENIES IN PART and GRANTS IN PART Gareis’s Motion for
summary judgment on Defendants’ defenses [Dkt. No. 41]. The Motion is moot as to
defenses withdrawn, including failure to join necessary and proper parties, failure to
mitigate, estoppel, spoliation, the Commerce Clause and the First Amendment. In view
of this Order’s disposition of Defendants’ Motion for summary judgment, Gareis’s
Motion is moot as to the statute of limitations and defenses related to warning including
adequate warning and Restatement (Second) of Torts §§ 388, 402a. The Motion is
DENIED IN PART as to defenses for which Defendants need not submit evidence,
including comparative fault and other forms of alternative causation, product misuse, and
state of the art.
Gareis’ Motion is GRANTED IN PART as to express preemption. The Court
will dispose of the Motion as to conflict preemption in a separate order, after further
briefing to be scheduled by the parties. Federal law does not expressly preempt Gareis’s
claims because the Bair Hugger was subject to FDA clearance—not FDA approval.
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Medtronic, Inc. v. Lohr, 518 U.S. 470, 494 (1996). Even if the FDA clears devices “with
a concern for . . . safety,” express preemption does not attach. Id. And even now, despite
changes to the clearance process, clearance is still “concerned with ‘equivalence, not
safety.’” Mack v. Stryker Corp., 748 F.3d 845, 856 (8th Cir. 2014) (quoting id. at 493
(emphasis omitted)). Clearance is thus irrelevant to Gareis’s surviving claim for design
defect, see id., so Gareis’s Motion is also GRANTED IN PART as to regulatory
compliance.
Dated: April 13, 2018

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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