Some litigations are gifts that keep on giving. A big chunk of DDL work product consists of commentary on a couple of mass torts. Maybe it is a version of the 80-20 rule, or how a huge percentage of crimes are committed by a relatively small group of career criminal recidivists. For a while, Aredia-Zometa cases consistently supplied grist for our mill. The pelvic mesh gave us a lot of rulings (mostly lousy) by the MDL courts, and a lot of rulings (mostly good) by the remand courts. More recently, it looks like the Bair Hugger MDL will never stop issuing interesting decisions. Early on, those decisions were not so good.  But lately, the courts (often the remand courts, so that pattern in itself is noteworthy) have been reassuringly sane. 

One of the most basic elements of product liability is product identification. The very name “product liability”suggests as much. The plaintiff had to be injured by the defendant’s product.  That fundamental requirement was lacking in Prichard v. 3M Co., 2025 WL 2586388 (N.D. Ga. Aug. 19, 2025), a decision in a case remanded from the Bair Hugger MDL.  

Recall that the Bair Hugger is a medical device used to regulate patient body temperature during surgery. Recall, also, that plaintiffs claimed infections due to contaminants from the device.  The Prichard complaint was a dreaded MDL short-form complaint, which is often a vehicle for sloppiness or outright fraud. Prichard’s complaint was ridiculously overpleaded (originally 19 separate causes of action) in typical MDL style. But none of those causes of action can survive absent product identification. There simply cannot be, say, causation, without product identification.  

MDL courts are too often too lax about requiring product identification.  That is why MDL’s have grown to a point where they constitute a gargantuan percentage of the civil docket.  Rather than police bloated inventories by insisting on some proof of product identification (and injury and causation), some MDL judges devote all their time to dreaming up ways to force settlement.  But once a remand court is facing the prospect of trial, that court becomes less interested in social engineering and more interested in not wasting judicial resources and jury time on garbage cases.  At that point, courts pay more attention to such niceties as product identification. 

Prichard reminds us of a bank robbery case in which the teller identified the FBI case agent as the crook. (That actually happened to one of our colleagues.  We had a jolly time taping trial transcript pages on his door.) In Prichard, the plaintiff’s medical records listed only a serial number identifying the device used during surgery. When the hospital was subpoenaed, it turned out that the number identified a device that wasn’t a Bair Hugger at all. 

Did the plaintiff realize he was mistaken and try to get his lawsuit right?  He did not.  Rather, the plaintiff’s convenient testimony, first appearing in his fact sheet, was that some unidentified nurse gave him something she called a “Bair Hugger” during surgical prep.  Unfortunately for plaintiff, that “evidence” (how many times have plaintiffs tried to fill in an essential evidentiary gap with a purported oral statement made by an unidentified employee?) did not prevent summary judgment, because it was blatant hearsay. Remember that inadmissible hearsay cannot defeat summary judgment.  The plaintiff had not attempted to identify the nurse, nor did he, personally, know what a Bair Hugger looked like.  

Beyond that, evidence that the hospital had purchased several of the defendant’s products more than a 15 years before the plaintiff’s surgery was not enough, given the positive identification of a different product in his medical records.  The hearsay and the sometime use of the product by the hospital might have been enough to survive lax MDL plaintiff vetting, but it could not prevent summary judgment in the remand court.  

Moreover, that one of the defendant’s heating devices was used during surgical prep did not mean that it was used during the surgery itself, where the claimed injury took place.  

The plaintiff attempted to exploit the defendant’s answer to the complaint, which admitted that the plaintiff’s “medical records indicate that the Bair Hugger may have been used in this procedure.”  That was then and this is now.  Allowing for a possibility means little, especially when there was “now evidence to the contrary, which cannot be supplanted by the parties’ earlier speculation.”  (Still, this sort of thing lends credence to the Roy Cohn school of litigation: deny everything.) 

By now, most of you can guess what the plaintiff’s last ditch argument against summary judgment was: more discovery, please. But discovery was closed, and that actually mattered to this court. In any event, a plaintiff cannot oppose summary judgment with “vague assertions” about what additional discovery might reveal. The court granted the defendant summary judgment, and denied the plaintiff’s request for further amendment of the complaint.