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Until now, the Bair Hugger MDL was known (at least to us) for two things:  First, was the Eighth Circuit’s horribly lax application of the Fed. R. Civ. P. 702 standards for expert admissibility – a decision that we consider the worst drug/device decision of 2021.  However, since then the federal judiciary’s Civil Rules Committee has adopted changes to Rule 702 that will, as of this December, overturn the Eighth Circuit’s weak approach to Rule 702.  Second, the manner in which the Bair Hugger litigation began was unusually sketchy, as we detailed here and here.

Recently, however, the tawdry manner of Bair Hugger’s origin was matched by a specious attempt to disqualify the MDL judge.  It’s obvious to us what is going on here.  Both sides know that plaintiffs’ free pass on Rule 702 expires this December, when the rule amendments take effect.  Assuming the expert testimony doesn’t change, the defendant essentially gets a do-over.  So the Bair Hugger plaintiffs desperately desired that do-over to be decided by a different judge.

So they tried to invent grounds for recusal from whole cloth.

Thankfully, it didn’t work – but here’s what happened.  See In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, ___ F. Supp.3d ___, 2023 WL 5541638 (D. Minn. July 10, 2023).

In a move we’ve never seen before, plaintiffs attempted to demonize the MDL judge’s recently hired law clerk – and thereby “disqualify” both the MDL judge and the magistrate judge assigned to the Bair Hugger MDL for purported “bias.”  Id. at *1.  Not surprisingly the once and future exclusion of the plaintiffs’ expert testimony loomed large in this ginned-up dispute.  But, disqualification of any judge requires “objective” evidence from which the judge’s “impartiality might reasonably be questioned.”  2023 WL 5541638, at *2 (quoting 28 U.S.C. §455(a)).  However, “in the real world” most recusals are “driven more by litigation strategies than by ethical concerns.”  Id. at *3 (citation and quotation marks omitted).  Recusal is not supposed to be “a vehicle for parties to shop among judges.”  Id. (citation and quotation marks omitted).

Almost immediately after remand from the Eighth Circuit’s atrocious decision, plaintiffs started their recusal threats.  Id. at *4.  But plaintiffs took their sweet time in actually pulling the trigger.

The motion arrived in the wake of at least 16 months of direct and indirect rumblings from Plaintiffs about their intention to file a recusal motion.  The timeliness requirement for filing recusal motions helps ensure that parties do not hold a motion in their back pocket for use in case the normal processes of litigation do not go according to their plan.  Plaintiffs’ motion to disqualify is untimely.

Id. at *6 (citation omitted).

It was also meritless.

Plaintiffs claimed that the MDL judge “never disclosed that she hired a retired defense lawyer as her law clerk.”  Id. at *3.  That argument proceeded from a false premise – in fact (and in law) there was nothing to disclose:

The Court is not obligated to notify Plaintiffs of its hiring decisions.  No party is entitled to introductions to Court staff.  And no party is entitled to know the identity of a law clerk assigned to work on a particular case.  The matters that a law clerk works on are confidential.  A law clerk may not disclose them.  Moreover, there was no “failure to disclose” the law clerk’s hiring because the names of the undersigned’s law clerks in 2019, including the one whose retention is cited by Plaintiffs as “rais[ing] an inference of bias,” were disclosed on the Court’s public website.

Id. (citations omitted).  We note that all of the supporting citations are to various guides.  There are no cases.  Thus, plaintiffs’ attack on a court clerk in Bair Hugger appears to be truly unprecedented (explaining why this decision is to be published).  Hiring a law clerk could not possibly support recusal.  “They mischaracterized him as a ‘secret’ law clerk, attacked him for adhering faithfully to the duty of confidentiality, and denigrated his experience as disqualifying.”  Id. at *20.  Plaintiffs’ claims that the law clerk “lurked only in the shadows” fundamentally misunderstood the function of judicial law clerks:

[L]aw clerks do not formally “appear” in cases.  Certainly there is no requirement that they present themselves in the courtroom to suggest that they are working on a particular case or aspect of a case. In fact, law clerks owe judges complete confidentiality in case-related matters . . . and they should never disclose any confidential information received in the course of official duties.

Id. (citations and quotation marks omitted).  Thus plaintiffs’ “secreccy” allegations were simply “false.”  Id.  Nor was there any conflict of interest:

The law clerk, in his long, pre-retirement career, is not alleged to have represented Defendants in any matter, let alone one that relates to the Bair Hugger.  Plaintiffs claimed no improper financial interest on the part of the law clerk.  They claimed no improper personal relationships on the part of the law clerk.  Plaintiffs alleged no violation of the Code of Conduct by the law clerk.  The most Plaintiffs say is that he apparently represented more products liability defendants than plaintiffs in his prior career.

Id. at *22.  In short, plaintiffs attacks were “unfounded, unreasonable, and unfair.”  Id.

Beyond attacking court personnel, plaintiffs bewailed the MDL judge’s supposed “pattern of conduct and rulings” and “totality of misconduct.”  Id. at *4.  But “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”  Id. at *6 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).  Bair Hugger was no exception.  In the only case that plaintiffs claimed was “instructive,” the judge had cursed both the plaintiff and counsel.  Id. at *7 (discussing Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)).  Nothing remotely like that happened here.

Judicial rulings may have left the Bair Hugger plaintiffs feeling “battered and bruised,” id., but it wasn’t the court’s fault that their substantive case, on both liability and damages, was so pathetically weak.  Apparently, to help counsel with a difficult client and a bad case (no use of the relevant product), the court offered to be the “mean judge” that dismissed that case.  Id. at *8.  Over four years later plaintiffs claimed the episode as proof that the court actually was a “mean judge.”  Id.  But “[a]ny reasonable listener to this exchange would understand that the Court was offering to make that particular lawyer’s job easier rather than harder by taking the blame for a dismissal that indisputably had to be made.”  Id.  A purported “insult” was more along these same lines.  Id. at *9 (“counsel . . . do not assert that he mistook the exchange for a mortal insult, much less one that merited raising for the first time more than 5 years after the fact”) (footnote omitted).

Basically, it came down to the plaintiffs in the Bair Hugger MDL being dissatisfied with various rulings by the MDL court and special master, specifically:

  • Imposing a deadline for suggestions of death, rather than letting plaintiffs do so whenever they want.
  • Not requiring a “Defendant Fact Sheet” without any allegation that any substantive discovery from the defendant had been denied.
  • Not allowing plaintiffs to file photocopied plaintiff verifications that appeared to be forged in a couple of cases.
  • Evidentiary rulings in the first Bair Hugger bellwether trial that were affirmed by the Eighth Circuit.  See Gareis v. 3M Co., 9 F.4th 812 (8th Cir. 2021).
  • Refusing to allow plaintiffs to “retract” Lexecon waivers belatedly and without good cause, in the wake of adverse rulings (see our post here)
  • Refusing to allow plaintiffs to offer different products as alternative designs − also affirmed by the Eighth Circuit.  See In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, 9 F.4th 768 (8th Cir. 2021).
  • Refusing to allow bellwether plaintiffs to add claims for punitive damages that the special master had found to be “futile.”
  • Granting summary judgment on warning claims in the first bellwether trial, also affirmed by the Eighth Circuit.  See Gareis, supra.
  • Precluding a plaintiff from relitigating a case in state court after stipulating to dismissal with prejudice.

Bair Hugger, 2023 WL 5541638, at *9-16.

All of those complaints were make-weights compared to the ruling that plaintiffs are really afraid of – the exclusion, on reconsideration, of their general causation experts.  The MDL judge had initially denied the defendant’s Rule 702 motion, but then was exposed first-hand to how truly awful those opinions were during the first bellwether trial, which the defendant won.  Id. at *17.  As thoroughly discussed in our prior post, the Eighth Circuit made a mockery of the “abuse of discretion” standard of review and reversed in a decision chock full of holdings contrary to how the Civil Rules Committee intended Rule 702 to operate.  With the corrective Rule 702 amendments targeting precisely these errors due to take effect in December 2023, plaintiffs are desperate that somebody – anybody – other than this judge decide the post-amendments Rule 702 motion that everyone expects to be filed

No, the Rule 702 reconsideration order – either “alone,” id. at *16, or together with plaintiffs’ other complaints – did not come close to justifying their scurrilous recusal motion:

The question posed in motions for recusal . . . is not whether the trial judge committed errors, but whether these errors create a reasonable inference that the Court has lost its impartiality.  The court of appeals recognized that “there are weaknesses in the factual basis for Plaintiffs’ medical experts’ general-causation opinions”. . . .  The Court’s reconsideration decision does not constitute grounds to disqualify.

Bair Hugger, 2023 WL 5541638, at *19 (citations to Eighth Circuit opinion omitted).

Hear, hear.  These sorts of baseless personal attacks strike us the litigation equivalent of the fact-free attacks on the conduct of elections that are all-too-common in current political discourse.  These plaintiffs have a losing case, but are similarly unwilling to admit that they’ve lost.