Column: Bair Hugger plaintiffs want to oust judge for hiring retired defense lawyer as clerk

By Alison Frankel

April 12 (Reuters) - (The opinions expressed here are those of the author, a columnist for Reuters.) Two years after a federal appellate court revived thousands of lawsuits by joint implant surgery patients who blame a 3M Co warming device for their post-surgery infections, plaintiffs' lawyers are trying to oust the judge who has overseen the consolidated multidistrict litigation since 2015.

They’ve got an unusual rationale.

In a disqualification motion made public on Tuesday, MDL co-lead counsel from Ciresi Conlin, Meshbesher & Spence and Levin Papantonio Rafferty asserted that U.S. District Judge Joan Ericksen of Minneapolis secretly hired a retired products liability defense lawyer to serve as her adviser as she considered a crucial 3M motion to exclude opinions from plaintiffs’ expert witnesses.

The judge did not disclose the retired defense lawyer’s involvement, according to plaintiffs' lawyers. But they alleged that when Ericksen decided in 2019 to bar plaintiffs’ experts – and toss all of the cases in the MDL – she relied on legal theories previously advanced by the retired defense lawyer, Frederick Morris of the firm now known as Stinson. Ericksen’s decision was subsequently reversed by the 8th U.S. Circuit Court of Appeals in 2021.

Plaintiffs lawyers called Morris “the man behind the curtain,” and asserted that Ericksen hid his involvement because revealing Morris’s role would have shown her bias.

“Judge Ericksen’s surreptitious retention of a seasoned products-liability defense lawyer who masqueraded as her ‘law clerk’ when she discarded this MDL ‘tainted’ any appearance of impartiality she had left,” the disqualification motion said.

Ericksen, who was appointed to the federal bench in 2002 after serving for four years as a Minnesota Supreme Court Justice, declined through a court spokesperson to comment on the disqualification motion. MDL co-lead counsel Genevieve Zimmerman of Meshbesher declined to comment beyond the plaintiffs’ brief.

I was unable to reach Morris, whose Minnesota bar association listing says he has been retired since 2014. He did not respond to a voicemail I left at his previous law firm phone number or to an email I sent to an address found in county records for Cook County, Minnesota.

The plaintiffs also moved to disqualify the federal magistrate in the MDL, captioned In re Bair Hugger Forced Air Warming Devices, because his financial adviser bought and sold a small number of 3M shares for his account while the MDL was underway. The magistrate, Judge David Schultz, declined to comment through a court spokesperson.

3M said in an email statement that the company opposes the other side’s call to disqualify Ericksen and Schultz, whom 3M called “highly respected judges.”

3M also refuted plaintiffs’ underlying assertion that the Bair Hugger blanket caused patients to develop post-surgical infections. Plaintiffs’ cases, it said, “are based on manipulated science and false allegations. The medical community has overwhelmingly rejected their theories, as have the juries that have heard their claims and conspiracy theories at trial.”

3M has won defense verdicts in the two Bair Hugger cases that have gone to trial, a Missouri state court case last October and a 2018 bellwether trial in the MDL. 3M’s MDL counsel from Norton Rose Fulbright recently argued in a letter to Ericksen that plaintiffs’ track record, which includes the voluntary dismissal of 12 of the 14 proposed bellwether cases in the MDL before the 2018 trial, highlights “the particular difficulties plaintiffs will have in proving specific causation,” even after the 8th Circuit decision on the admissibility of their expert opinions.

The company is calling for additional vetting of the lawsuits in the MDL as well as detailed discovery in a sample of 250 cases to determine the viability of plaintiffs’ theories. Plaintiffs said in a December 2022 filing that they should not be saddled with new, one-sided discovery obligations. They also said that recent scientific studies, as well as evidence obtained from 3M, supports their causation arguments.

It's not clear from the public record exactly what role Morris, the retired defense lawyer, played in the MDL or even how plaintiffs' lawyers learned that he advised Ericksen during her 2019 reconsideration of 3M’s motion to exclude plaintiffs’ experts.

In a declaration accompanying the disqualification motion, Zimmerman cited plaintiffs’ “information and belief” that Morris “was hired as Judge Ericksen’s temporary law clerk circa April 2019,” and that his role ended when the judge issued her decision granting judgment to 3M.

The motion said that Ericksen introduced other law clerks to lawyers in the MDL over the years, but never introduced them to Morris or even revealed that she had hired him.

The motion does not suggest that Morris or his firm (which was previously known as Leonard, Street and Deinard) worked for 3M. But plaintiffs lawyers said that before his retirement, Morris prevailed in a product liability case against Mead Johnson & Co when he asked Ericksen to strike the plaintiff’s experts on specific causation.

Plaintiffs lawyers said it was no coincidence that soon after Ericksen hired Morris, the judge called for supplemental briefing in the Bair Hugger MDL along the lines of Morris’ arguments in the Mead Johnson case. Even though the judge had previously denied 3M’s motion to exclude their experts in advance of the 2018 bellwether trial, the disqualification motion said, Ericksen reversed her thinking after Morris joined her staff.

“Relying on Mr. Morris’ expertise in defeating similar actions, Judge Ericksen invented never-before-disclosed problems,” the plaintiffs’ motion said.

The motion cited a handful of cases in which judges were disqualified because of their clerks’ or advisers’ conflicts. In what seems to be the nearest analog, the 3rd Circuit found a trial judge in several asbestos bankruptcy proceedings was “tainted by conflict” because he had appointed five purportedly neutral advisers who were involved as advocates in unrelated asbestos cases.

In a separate filing, plaintiffs lawyers asked Ericksen to bring in another judge to decide whether she should be ousted. 3M has until May 3 to submit its response to both motions.

Read more:

SCOTUS gives 3M the cold shoulder on warming-device litigation

U.S. court revives nearly 6,000 lawsuits over 3M surgical warming device (Reporting By Alison Frankel; editing by Leigh Jones)