The Supreme Court Should Bag the Bair Hugger Case

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  • 03/02/2023

When inflation hits, there is the obvious macroeconomic explanation: too many dollars chasing too few goods.  Yet, there are also less obvious microeconomic explanations, one of which is the increased cost of producing goods.  Perhaps nowhere is the rising cost of a good or service more consequential than in the field of health care.

Currently, the United States Supreme Court has the opportunity to reaffirm established precedent in the area of expert testimony.  If they avail themselves of this opportunity, it will constitute a significant guard against inflation in the price of health care – and, indeed, in the price of a plethora of goods and services – by not increasing the occurrence and costs of litigation, especially those stemming from frivolous suits.

The federal district court case in question is 3M Company et al. v. George Amador (In re Bair Hugger Forced Air Warming Devices Products Liability Litigation).  The facts of the case make for some interesting reading, to say the least.

The “Bair Hugger” is a special blanket used in orthopedic surgeries, most notably in knee and hip replacement surgeries.  It is designed to maintain the patient’s body temperature while under anesthesia; and it has been proven exceedingly effective in reducing the adverse side effects of infections and other complications from surgery.  So effective, in fact, it has been used in over 300 million surgeries worldwide.

The plot twist in the case is that the inventor of the Bair Hugger blanket, Dr. Scott Augustine, is now publicly contending his device is actually causing infections.  Yet, his critiques of his creation have not been supported, let alone substantiated, by the Food and Drug Administration (FDA), public-health officials, nor treating physicians.

Apparently, Dr. Augustine’s epiphany regarding the Bair Hugger stems not from medical research but from financial considerations: when he pleaded guilty to Medicare fraud, the doctor lost his very lucrative rights to profit off the Bair Hugger.

Hence, litigation ensued regarding his claims.  At the federal district court level, after providing wide latitude for the plaintiff to prove his three experts’ “made for litigation” opinion testimony was reliable, the district judge excluded it for being wholly unreliable, as set forth in the federal Rule 702.  This less than surprising, as one of Dr. Augustine’s commissioned experts who authored a study described it as “marketing rather than research.”  Ultimately, Dr. Augustine lost the case.    

Dr. Augustine’s lawyers appealed to the Eighth Circuit Court of Appeals.  There, the panel reversed, overstepping its role and second-guessing the trial court by ruling Dr. Augustine’s three experts’ testimony was not “so fundamentally unsupported by its factual basis that it can offer no assistance to the jury.”  Consequently, despite the fact the Eighth Circuit had no dispute with the lower court’s findings that the experts’ opinions were rife with “flaws,” “weaknesses,” and “gaps,” the appellate court issued a novel ruling that contradicts precedent and, ergo, is not followed in any other federal circuit.

The reason the Supreme Court needs to reverse the Eighth Circuit’s decision is two-fold.

First, the precedent is “reliability” not relevance.  Almost anything can be considered relevant to almost anything else.  Yet, the standard is “reliability,” not the six degrees of Kevin Bacon standard.  What is vital in a judicial proceeding to avoid prejudicing jurors or nullifying them entirely is for the facts to speak to the judicial heart of the matter.  Miscarriages of justice both civil and criminal occur when emotion and unreliable evidence is entered into the proceeding, not when too many facts are presented.  (Though even regarding facts, some are not admitted into evidence – no matter how concrete – to avoid prejudicing a jury or nullifying it.)

Secondly, the other precedent at stake is the role of the federal district court as the gatekeeper of the evidence introduced at trial.  The essence of this precedent is akin to “that government is best which is closest to the people.”  The trial court is that court closest to the case; therefore, the precedence holds that an appellate court must accord the trial court substantial deference regarding the admissibility of evidence.  Surely, the Eighth Circuit, by erroneously applying a liberal interpretation of admissibility, did not show the required deference to the trial court in this instance.

It doesn’t take much to see what will happen if the Eighth Circuit’s decision stands.  Throughout the federal judiciary, which is already straining under the weight of litigants’ cases, questionable and frivolous lawsuits will rise, propelled by the new, liberalized admissibility standard for expert testimony.  If all it takes is relevance to introduce foundationally flawed, paid-for expert testimony, there will be an exponential increase in the number of plaintiffs willing to roll the dice in the hopes of prejudicing a jury with “junk science” and other “relevant” but unreliable evidence to hit a judicial judgement jackpot.

This is not a “hot button” judicial issue or an ideological litmus test.  It is about affirming precedent for maintaining the stability, integrity, and equity of the federal judiciary.  Let us hope the Supreme Court agrees.  For, to bring it full circle, the cost of such litigation – including “jackpot” judicial awards – will be included in the inflated cost of everything you purchase, such as health care.

Unfortunately, that’s a precedent no one can overturn.

As he describes himself:  The product of a misspent youth, the Hon. Thaddeus G. McCotter (M.C., Ret.) is a guitarist, author, occasional radio co-host, and recovering politician.  He is a former U.S. Congressman from Michigan having represented that state’s 11th Congressional district from 2003-2012.

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