United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
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.
Court DENIES Defendants' Motion to
exclude expert testimony by Said Elghobashi [Dkt. No. 45].
Although Elghobashi proposes to testify about
squame-spreading 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.
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.
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”).
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 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
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.
Court GRANTS IN PART Defendants' Motion
for summary judgment, as to Defendants' lack of a duty to
warn. As of the surgery that allegedly caused Gareis's
prosthetic-joint infection, 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. Although Gareis cites documents
that purportedly trigger a duty to warn, these documents are
not scientific or medical data and so do not trigger a duty
to warn. These facts also preclude Gareis from showing
negligence-that Defendants failed to meet a reasonable
medical-device manufacturer's standard of care, whether
in their Bair Hugger distribution or in their other
activities. Gareis must show at least negligence for his
claims of negligence, unfair and deceptive trade practices,
misrepresentation and unjust enrichment. Because he has not
created a fact issue as to negligence, summary judgment is
GRANTED for Defendants as to these claims (Gareis's
counts 1, 4-11 and 14).
Court DENIES IN PART Defendants' Motion
for summary judgment, only as to Gareis's
strict-liability claim for design defect. Asserting three
arguments, Defendants move for summary judgment of no design
defect. As to these arguments, the Motion is denied. 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 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. Defendants' other arguments are moot because
this Order grants summary judgment for Defendants as to the
claims to which those arguments pertain.
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
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. 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 ...