Louis Gareis v. 3M Company ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3553
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Louis Gareis; Lillian Gareis
Plaintiffs - Appellants
v.
3M Company; Arizant Healthcare, Inc.
Defendants - Appellees
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No. 18-3580
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Louis Gareis; Lillian Gareis
Plaintiffs - Appellees
v.
3M Company; Arizant Healthcare, Inc.
Defendants - Appellants
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 16, 2021
Filed: August 17, 2021
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
Louis and Lillian Gareis are plaintiffs whose case is part of the Bair Hugger
multidistrict litigation (“MDL”) against 3M Company and Arizant Healthcare, Inc.
(collectively, “3M”). See In re Bair Hugger Forced Air Warming Devices Prods.
Liab. Litig., MDL No. 15-2666 (JNE/DTS), 2019 WL 4394812, at *2 (D. Minn. July
31, 2019). The district court 1 granted 3M summary judgment on the Gareises’
failure-to-warn claim, and a jury returned a verdict for 3M on the Gareises’ strict-
liability design-defect claim. After the district court entered final judgment in their
case, the Gareises appealed, challenging the summary-judgment decision and three
evidentiary rulings. For the following reasons, we affirm.2
I.
In December 2015, the Judicial Panel on Multidistrict Litigation centralized
the In re Bair Hugger Forced Air Warming Devices Products Liability Litigation in
the district court for coordinated pretrial proceedings. The Gareises eventually filed
a complaint as part of the MDL. They alleged that Louis Gareis underwent hip-
replacement surgery in South Carolina, during which he was kept warm with a Bair
Hugger, a convective patient-warming device applied to patients during operations
to stave off hypothermia-related complications. The Gareises claimed that use of
the Bair Hugger caused him to develop a periprosthetic joint infection (“PJI”). The
Gareises asserted numerous state-law causes of action against 3M, including strict-
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
2
3M cross-appealed, raising two alternative grounds to affirm and asserting
its own claim of evidentiary error if we were to reverse and remand for a new trial.
We affirm for the reasons discussed below and do not reach any of the issues 3M
raised on cross-appeal.
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liability design-defect as well as failure-to-warn under both negligence and strict-
liability theories.
3M moved for summary judgment. Applying South Carolina substantive law,
the district court granted in part 3M’s motion. As relevant here, it granted summary
judgment for 3M on the failure-to-warn claim because it found that 3M did not have
sufficient actual or constructive knowledge of the Bair Hugger’s alleged danger prior
to Louis Gareis’s surgery to owe a duty to warn. But it denied 3M’s motion with
respect to the Gareises’ strict-liability design-defect claim, and that claim was the
sole claim that went to trial.
The district court made several evidentiary rulings during trial that are
relevant here. First, it prohibited the Gareises from introducing evidence of 3M’s
alleged knowledge of the risks and utility of the Bair Hugger at the time the Bair
Hugger used in Louis Gareis’s surgery left 3M’s control. Second, the court
prohibited the Gareises from introducing evidence of various alternative designs to
the Bair Hugger that they proffered to support their design-defect claim (though it
did allow them to introduce evidence of a patient-warming device called the
TableGard as reasonable-alternative-design evidence). Third, over the Gareises’
objection, the district court allowed 3M’s expert, Dr. John Abraham, to testify about
a computational-fluid-dynamics (“CFD”) model he built.
After an approximately two-week trial, the jury returned a special verdict in
favor of 3M, finding separately that (1) the Gareises failed to prove that the Bair
Hugger was unreasonably dangerous for its intended use and that a reasonable safer
alternative design existed, and (2) the Gareises failed to prove that Louis Gareis’s
PJI would not have occurred but for the use of the Bair Hugger during his surgery.
The district court subsequently denied the Gareises’ motion for a new trial. The
Gareises appeal, challenging the three aforementioned evidentiary rulings and the
grant of summary judgment regarding their failure-to-warn claim.
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II.
On appeal, it is undisputed that South Carolina law governs the Gareises’
claims. Federal law governs the evidentiary issues on appeal, see Hirchak v. W.W.
Grainger, Inc., 980 F.3d 605, 608 (8th Cir. 2020), as well as the question whether
summary judgment was properly granted, see Hutcherson v. Progressive Corp., 984
F.2d 1152, 1155 (11th Cir. 1993).
A.
First, we consider the Gareises’ contention that the district court abused its
discretion by excluding (1) evidence of 3M’s knowledge of the risks and utility of
the Bair Hugger and (2) evidence of reasonable alternative designs to the Bair
Hugger besides the TableGard. In their motion for a new trial, the Gareises raised
these same points. The district court rejected them, concluding that it had not erred
in excluding the evidence and that, in any event, the Gareises had not identified any
prejudice resulting from the exclusion of this evidence.
We review a district court’s evidentiary rulings for an abuse of discretion.
Vogt v. State Farm Life Ins., 963 F.3d 753, 770 (8th Cir. 2020). Further, we will not
set aside a verdict or grant a new trial due to an erroneous evidentiary ruling unless
that ruling was prejudicial. See id. at 770-71. The burden of showing prejudice rests
on the party challenging the evidentiary ruling. Gill v. Maciejewski, 546 F.3d 557,
562 (8th Cir. 2008). To carry this burden, the party must show that the excluded
evidence was “of such a critical nature that there is no reasonable assurance that the
jury would have reached the same conclusion had the evidence been admitted.” See
id. (internal quotation marks omitted); Schultz v. McDonnell Douglas Corp., 105
F.3d 1258, 1259 (8th Cir. 1997) (framing this inquiry as “whether exclusion of the
evidence was so prejudicial as to require a new trial which would be likely to produce
a different result” (internal quotation marks omitted)).
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Under South Carolina law, a strict-liability design-defect claim requires proof
that (1) “the product, as designed, was in a defective condition unreasonably
dangerous to the user when it left the control of the defendant” and (2) “the defect
caused his injuries.” Madden v. Cox, 328 S.E.2d 108, 112 (S.C. Ct. App. 1985).
Both risk-utility evidence and reasonable-alternative-design evidence bear on the
first element. See, e.g., Newbern v. Ford Motor Co., 833 S.E.2d 861, 864 (S.C. Ct.
App. 2019) (“Under the risk-utility test, a product is ‘unreasonably dangerous and
defective if the danger associated with the use of the product outweighs the utility
of the product.’” (quoting Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321, 328 (S.C. Ct.
App. 1995))); Holland ex rel. Knox v. Morbark, Inc., 754 S.E.2d 714, 720 (S.C. Ct.
App. 2014) (“[P]roof of a reasonable alternative design is necessary to establish
whether a product is unreasonably dangerous in a design defect case . . . .” (citing
Branham v. Ford Motor Co., 701 S.E.2d 5, 13 (S.C. 2010))).
Although the Gareises argue that the evidence discussed above should have
been admitted because it was relevant to the first element of their strict-liability
design-defect claim, they fail to show prejudice from its exclusion. The jury returned
a special verdict for 3M, finding that the Gareises failed to prove both that the Bair
Hugger was defectively designed and that the Bair Hugger caused Louis Gareis’s
PJI. None of the evidence that the Gareises argue was erroneously excluded is
relevant to the second element, causation. And even if it were, the jury heard
extensive testimony about the “many different ways” the bacteria causing Louis
Gareis’s PJI may have entered the site of his hip implant, resulting in his PJI, besides
use of the Bair Hugger during his surgery. These include bacteria on and in his own
skin that could have entered the implant site via the surgical incision; bacteria on
surgical staples used during his surgery that could have entered the implant site;
bacteria shed from the skin of any one of the medical personnel in his operating room
during the surgery that could have reached the implant site regardless of the Bair
Hugger’s use during his surgery; bacteria transmitted to the implant site by medical
personnel’s direct contact with it; bacteria in drainage from his wound after the
surgery that could have leaked into the implant site; bacteria in his bloodstream
obtained from an exposure other than his operation that could have traveled to and
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infected the implant site; and bacteria from a hip injection he received after his
surgery.
The Gareises do not mention this evidence supporting the jury’s verdict on
the causation issue, let alone explain why, in the face of this evidence, they suffered
prejudice from the exclusion of their risk-utility and reasonable-alternative-design
evidence. Accordingly, even assuming the risk-utility and reasonable-alternative-
design evidence was erroneously excluded, we will not set aside the judgment and
remand for a new trial on this basis.
B.
Next, we consider the Gareises’ argument that the district court abused its
discretion by allowing 3M’s expert Dr. John Abraham to testify about operating-
room airflow. This testimony was used to rebut the Gareises’ theory of how the Bair
Hugger caused Louis Gareis’s PJI. They claim that this testimony should not have
been admitted because 3M did not disclose the factual basis for it. See Fed. R. Civ.
P. 26(a)(2)(B)(i) (requiring disclosure of the “basis and reasons” for an expert’s
opinion); Fed. R. Civ. P. 37(c)(1) (providing that “[i]f a party fails to provide
information . . . as required by Rule 26(a),” then “the party is not allowed to use that
information . . . unless the failure was substantially justified or is harmless”). The
Gareises raised this same point in their motion for a new trial. The district court
rejected it, finding both harmlessness and a lack of prejudice resulting from the
admission of this testimony.
We review for an abuse of discretion a district court’s decision to admit expert
testimony. Estate of West ex rel. West v. Domina Law Grp., PC LLO, 981 F.3d 652,
654 (8th Cir. 2020). We will not reverse a jury verdict because of erroneously
admitted expert testimony unless the party claiming error shows that the evidence
had a “substantial influence” on the jury’s verdict. See McKnight ex rel. Ludwig v.
Johnson Controls, Inc., 36 F.3d 1396, 1405 (8th Cir. 1994); Hose v. Chi. Nw. Transp.
Co., 70 F.3d 968, 973 (8th Cir. 1995); Qualley v. Clo-Tex Int’l, Inc., 212 F.3d 1123,
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1128 (8th Cir. 2000). Making this showing is particularly difficult “where there is
substantial evidence in the record beyond the evidence improperly admitted to
support the jury’s decision.” See McKnight, 36 F.3d at 1405.
The Gareises assert in conclusory fashion that Dr. Abraham’s testimony was
“obviously prejudicial.” Even considering this meager assertion of prejudice, but
see United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (rejecting a “bare
and unsupported assertion” of prejudice from expert testimony), we find no
prejudice justifying reversal. Again, the jury heard extensive testimony about the
various ways the bacteria causing Louis Gareis’s PJI could have infected his implant
site besides use of the Bair Hugger during his surgery. See supra Section II.A. The
Gareises do not even mention all this other evidence, let alone explain why,
notwithstanding this evidence, Dr. Abraham’s testimony was prejudicial.
Accordingly, even if the admission of Dr. Abraham’s testimony was erroneous, we
find no basis to reverse the jury’s verdict on this ground. See McKnight, 36 F.3d at
1405.
C.
Finally, we consider the Gareises’ contention that the district court erred in
granting summary judgment to 3M on their failure-to-warn claim asserted under
both negligence and strict-liability theories. We review de novo the district court’s
grant of summary judgment. Daredevil, Inc. v. ZTE Corp., 1 F.4th 622, 627 (8th
Cir. 2021). “Summary judgment is appropriate if, when the record is viewed in the
light most favorable to the nonmoving party, there are no genuine disputes of
material fact and the moving party is entitled to judgment as a matter of law.”
Rossley v. Drake Univ., 979 F.3d 1184, 1186 (8th Cir. 2020). We may affirm
summary judgment for any reason supported by the record. Reasonover v. St. Louis
Cnty., 447 F.3d 569, 578-79 (8th Cir. 2006); see also Auman v. United States, 67
F.3d 157, 161-62 (8th Cir. 1995); United States v. Wood, 834 F.2d 1382, 1389 & n.4
(8th Cir. 1987), abrogation on other grounds recognized by United States v. Aguayo-
Delgado, 220 F.3d 926, 933 (8th Cir. 2000). Additionally, we “must disregard” any
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errors that are harmless. Fed. R. Civ. P. 61; see also 28 U.S.C. § 2111. An erroneous
grant of summary judgment may be disregarded as harmless when it is followed by
a trial and the verdict rendered in that trial shows that the claim or claims resolved
at summary judgment likewise would have failed at trial. See, e.g., Cavataio v. City
of Bella Villa, 570 F.3d 1015, 1024 (8th Cir. 2009); Wing v. Britton, 748 F.2d 494,
498 (8th Cir. 1984); cf. Russell v. Anderson, 966 F.3d 711, 730 (8th Cir. 2020)
(concluding the same about judgment as a matter of law erroneously granted during
trial).
The district court granted 3M summary judgment on the Gareises’ failure-to-
warn claim under both negligence and strict-liability theories because it concluded
that 3M lacked sufficient actual or constructive knowledge at the time of Louis
Gareis’s surgery about the Bair Hugger’s alleged dangers to have a duty to warn.
Under South Carolina law, a product manufacturer such as 3M can be held liable for
failing to warn of a product’s dangers under either negligence or strict-liability
theories if the manufacturer “know[s] or ha[s] reason to know the product is or is
likely to be dangerous for its intended use.” See Livingston v. Noland Corp., 362
S.E.2d 16, 18 (S.C. 1987) (discussing negligent failure to warn); Restatement
(Second) of Torts § 402A cmt. j (Am. Law Inst. 1965) (stating that a strict-liability
failure-to-warn claim has a comparable know-or-have-reason-to-know element);
S.C. Code § 15-73-30 (incorporating by reference the comments to Restatement
(Second) of Torts § 402A to govern product-liability claims). The Gareises argue
that summary judgment on their failure-to-warn claim under both theories was
erroneous because a genuine dispute of material fact remained as to whether 3M
actually or constructively knew that the Bair Hugger was or was likely to be
dangerous in orthopedic surgeries so as to trigger 3M’s duty to warn.3
We need not reach this question because an alternative ground exists to affirm.
Under South Carolina law, a manufacturer or seller is liable under either theory for
3
It is undisputed that 3M did not provide a warning for the Bair Hugger used
in Louis Gareis’s surgery.
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failing to warn only if the plaintiff shows “that he was injured by the product” in
question. Dema v. Shore Enters., Ltd., 435 S.E.2d 875, 876 (S.C. Ct. App. 1993);
Bragg, 462 S.E.2d at 326; Madden, 328 S.E.2d at 112; see also Bray v. Marathon
Corp., 588 S.E.2d 93, 95 (S.C. 2003) (“A products liability plaintiff must prove the
product defect was the proximate cause of the injury sustained.”); Young v. Tide
Craft, Inc., 242 S.E.2d 671, 679 (S.C. 1978) (holding that the plaintiff’s failure-to-
warn claim failed because she did not show that the issue with the product in question
that ostensibly required a warning was a proximate cause of the injuries). The
question whether the Bair Hugger used in Louis Gareis’s surgery caused his PJI was
tried to the jury, which returned a special verdict finding that the Gareises failed to
prove this point. As 3M points out in its opening brief and as discussed above, see
supra Section II.A., the jury heard extensive evidence supporting this finding. Its
“verdict in favor of [3M] on the [causation issue] indicates the jury would not have
found in favor” of the Gareises on their failure-to-warn claim even if the claim had
survived summary judgment. See Cavataio, 570 F.3d at 1024. Thus, the district
court’s grant of summary judgment on this claim, “even if wrong, did no harm.” See
Wing, 748 F.2d at 498. Accordingly, we affirm it.4
III.
For the foregoing reasons, we affirm.
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4
In their opening brief, the Gareises repeatedly assert that the district court
erroneously granted summary judgment to 3M regarding their duty-to-warn (or
failure-to-warn) “claim.” For the first time in their reply brief, they assert that other
counts besides their failure-to-warn counts were erroneously dismissed at summary
judgment for the same reason their failure-to-warn counts were erroneously
dismissed. We do not consider whether these other counts were properly dismissed.
See, e.g., United States v. Grace, 893 F.3d 522, 525 (8th Cir. 2018) (“Issues not
raised in a party’s opening brief are waived.”); Lors v. Dean, 595 F.3d 831, 835 n.3
(8th Cir. 2010) (per curiam) (finding waiver where the appellant failed to raise the
erroneous dismissal of a count in his complaint until the reply brief).
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