Rhoton et al v. 3M Company et al

Filing 19

TRANSFER ORDER re: pldg. ( 3 in MDL No. 2666), ( 2 in MDL No. 2666), ( 1 in MDL No. 2666) Transferring 5 action(s) to Judge Judge Joan N. Ericksen in the D. Minnesota.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/11/2015. Associated Cases: MDL No. 2666, ALN/2:15-cv-01306, ARE/4:15-cv-00465, KS/2:14-cv-02044, MN/0:15-cv-03139, MN/0:15-cv-03140, MN/0:15-cv-03141, MN/0:15-cv-03142, MN/0:15-cv-03143, MN/0:15-cv-03328, MN/0:15-cv-03329, MN/0:15-cv-03331, MN/0:15-cv-03338, OHN/1:15-cv-01661, TXS/4:13-cv-01164 (JG)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: BAIR HUGGER FORCED AIR WARMING
DEVICES PRODUCTS LIABILITY LITIGATION

MDL No. 2666

TRANSFER ORDER

Before the Panel:* Plaintiff in an action (Lichlyter) pending in the District of Minnesota
moves under 28 U.S.C. § 1407 to centralize the fourteen actions listed on the attached Schedule A
in that district, where nine of the actions already are pending. The other five actions are pending in
the Northern District of Alabama (Rhoton), the Eastern District of Arkansas (Edwards), the District
of Kansas (Johnson), the Northern District of Ohio (Kent), and the Southern District of Texas
(Walton). The Panel has been informed of 51 additional related federal actions.1
All responding plaintiffs support centralization, but there is some disagreement regarding the
choice of transferee district. The Johnson and Walton plaintiffs and plaintiffs in potential tag-along
actions pending in the District of Minnesota (Crawford) and the Southern District of Mississippi
(Rhymes) support selection of the District of Minnesota. The Kent plaintiff supports selection of the
Northern District of Ohio. Plaintiffs in the potential tag-along actions (Carter and Heffernan)
pending in the Central District of California support selection of that district. And plaintiffs in
potential tag-along actions pending in the Eastern District of Louisiana (Templet), Middle District
of Louisiana (Cagle), and District of Utah (Wainner) support selection of the Eastern District of
Louisiana.2
Common defendants 3M Company (3M) and Arizant Healthcare, Inc. (Arizant) support
centralization in the District of Minnesota, but ask that the Johnson and Walton actions be excluded
from the MDL, on the grounds that they are far more advanced than the other twelve actions.
On the basis of the papers filed and the hearing session held, we find that these actions
involve common questions of fact, and that centralization will serve the convenience of the parties

*

Judge Marjorie O. Rendell and Judge Lewis A. Kaplan took no part in the decision of this

matter.
1

Those actions and any other related federal actions are potential tag-along actions. See
Panel Rules 1.1(h), 7.1, and 7.2.
2

The Kent, Carter, Heffernan, Cagle, and Wainner plaintiffs support selection of the District
of Minnesota, in the alternative.

-2and witnesses and promote the just and efficient conduct of this litigation. The actions share factual
issues arising from allegations that plaintiffs developed serious infections during their orthopedic
surgeries due to the introduction of contaminants into their open wounds as a result of the use of a
Bair Hugger Forced Air Warming system (Bair FAW). Specifically, plaintiffs allege that the device
is defective in at least two respects: (1) the device affects airflow in the operating room, causing
bacteria from the operating room floor to be deposited into the surgical site; and (2) the internal
airflow paths of the device’s blower can become contaminated with pathogens that can then be
expelled into the operating room. The actions thus present common issues concerning the
development, manufacture, testing, regulatory approval process, and marketing of the Bair FAW.
Centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on Daubert
and other issues, and conserve the resources of the parties, their counsel, and the judiciary.
We reject defendants’ request to exclude the Johnson and Walton actions from the MDL.
Although the two actions have been pending substantially longer than the other constituent actions,
significant pretrial proceedings, including expert discovery, remain to be conducted. Including the
actions in the MDL will benefit the litigation as a whole. And, to the extent that the somewhat more
advanced status of the two actions warrants their expedited treatment, the transferee judge is free to
handle them accordingly. See, e.g., In re: TR Labs Patent Litig., 896 F. Supp. 2d 1337, 1338
(J.P.M.L. 2012) (“The transferee judge possesses broad discretion to formulate a pretrial program
that accounts for any significant differences among the subject actions and ensures that duplicative
activity is minimized or eliminated.”).
We select the District of Minnesota as transferee district for this litigation. The 3M and
Arizant defendants are headquartered in Minnesota, and many witnesses and relevant documents are
likely to be found there. In addition, nine of the constituent actions are pending in that district, as
are 35 tag-alongs. The Honorable Joan N. Ericksen, to whom we assign this litigation, is a veteran
jurist with previous MDL experience, and we have no doubt that she will steer this MDL on a
prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the District of Minnesota are transferred to the District of Minnesota, and, with the consent of that
court, assigned to the Honorable Joan N. Ericksen for coordinated or consolidated pretrial
proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Charles R. Breyer
R. David Proctor

Ellen Segal Huvelle
Catherine D. Perry

IN RE: BAIR HUGGER FORCED AIR WARMING
DEVICES PRODUCTS LIABILITY LITIGATION

SCHEDULE A

Northern District of Alabama
RHOTON, ET AL. v. 3M COMPANY, ET AL., C.A. No. 2:15-01306
Eastern District of Arkansas
EDWARDS v. 3M COMPANY, ET AL., C.A. No. 4:15-00465
District of Kansas
JOHNSON v. 3M COMPANY, ET AL., C.A. No. 2:14-02044
District of Minnesota
LICHLYTER v. 3M COMPANY, ET AL., C.A. No. 0:15-03139
NAYLOR v. 3M COMPANY, ET AL., C.A. No. 0:15-03140
NOTTINGHAM v. 3M COMPANY, ET AL., C.A. No. 0:15-03141
SCHACKMANN v. 3M COMPANY, ET AL., C.A. No. 0:15-03142
REED v. 3M COMPANY, ET AL., C.A. No. 0:15-03143
GRUSHESKY v. 3M COMPANY, ET AL., C.A. No. 0:15-03328
LIBBY v. 3M COMPANY, ET AL., C.A. No. 0:15-03329
WILLIAMS v. 3M COMPANY, ET AL., C.A. No. 0:15-03331
ROSTEN v. 3M COMPANY, ET AL., C.A. No. 0:15-03338
Northern District of Ohio
KENT, ET AL. v. 3M COMPANY, ET AL., C.A. No. 1:15-01661
Southern District of Texas
WALTON v. 3M COMPANY, ET AL., C.A. No. 4:13-01164

MDL No. 2666