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.