Health Law Daily Wrap Up, MEDICAL DEVICES—D. Minn.: Surgical warming device makers granted summary judgment in patient’s injury action, (Sep 18, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

The patient conceded most of his claims, and the remaining claims were found to be time-barred under Louisiana’s one-year period of prescription for delictual actions.

In an action brought against the manufacturers of a forced air warming system by a patient who suffered a joint infection allegedly due to defects in the device used in his hip surgery, the federal district court in Minnesota granted the companies’ summary judgment motion. The court found that the prescription period commenced from the day the injury or damage was sustained, and the discovery rule did not apply to toll the running of prescription because the patient had undergone five revision surgeries by 2017, discovered the use of the device and his potential claims against the makers by May 2022, and was thus on inquiry notice of his claim more than a year before the suit was filed in June 2023 ( Pelican v. 3M Co., No. 23-cv-1818 (D. Minn. Sept. 11, 2025)).

Background. In May 2016, a Louisiana patient underwent a hip surgery at the Lake Charles Memorial Hospital in Lake Charles, Louisiana, during which a Bair Hugger Forced Air Warming system was used. He later alleged that the use of the warming system introduced contaminants into his open surgical wound, causing him to develop a periprosthetic joint infection requiring extensive medical intervention and ongoing treatment. Between June 2016 and August 2017, he underwent five revision surgeries. In June 2023, the patient commenced suit against the product’s manufacturer, Arizant Healthcare, and the entity which later acquired Arizant, 3M Company. The complaint asserted 19 claims, including strict liability, negligence, misrepresentation, breach of warranty, consumer fraud, deceptive trade practices, and punitive damages. The companies moved for summary judgment and to exclude the patient’s expert opinions.

Parties’ contentions. The manufacturers argued that (1) all 19 claims were time-barred under Louisiana’s one-year prescriptive period; (2) the claims failed on the merits and there was no admissible evidence on specific causation; (3) the failure-to-warn claim failed because no reasonable jury could conclude that a warning was necessary; (4) the patient’s breach of warranty claim failed because he had no evidence of an actionable express warranty, let alone one that was relied upon and caused him injury; and (5) the majority of his claims (16 of the 19 claims) alleged were not cognizable under Louisiana law. The patient responded that his Louisiana Product Liability Act (LPLA) counts and punitive damages request were viable claims but conceded that the remainder were abrogated or not allowed. He believed that his claims were timely brought and that there was sufficient causation evidence to create a triable issue and to find that the companies should have warned medical providers of the link between the Bair Hugger and periprosthetic joint infections before the device was used in his surgery.

Legal standard. “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” La. Civ. Code art. 3492. Louisiana’s equitable-tolling doctrine, contra non valentem agere non currit praescriptio, tolls prescription under four circumstances, one of which is where the cause of action is not known or reasonably knowable by the plaintiff (discovery rule). Constructive notice or knowledge sufficient to start prescription requires more than a suspicion or apprehension—“when a plaintiff suspects something is wrong, he must seek out those whom he believes may be responsible for the specific injury” and investigate the injury. Bruno v. Biomet, Inc., 74 F.4th 620, 623 (5th Cir. 2023). “When a plaintiff acts reasonably to discover the cause of a problem, the prescriptive period [does] not begin to run until [he has] a reasonable basis to pursue a claim against a specific defendant.”

The manufacturers submitted that the man’s claims were prescribed under Section 3492 because he did not commence his action within one year of June 3, 2016, when he was diagnosed with a left hip infection and underwent his first revision surgery, and that his claims were not saved by the discovery rule. The patient responded that contra non valentem made his claims timely since he had no actual or constructive knowledge that a forced air warming system, let alone a Bair Hugger, was used in his May 2016 hip surgery until August 24, 2022, when his medical records were obtained by him and his counsel. Accordingly, he believed that the prescription period did not begin to run until August 24, 2022.

Analysis. Based on the man’s concession that his non-LPLA claims were either abrogated or not allowed, the court dismissed those counts and turned to whether the remaining claims were time-barred. The court noted that the initial hip surgery took place in May 2016, the first revision surgery to cure the infection symptoms was in June 2016, and the subsequent revision surgeries took place in November 2016, January 2017, July 2017, and August 2017. During his deposition in May 2024, the patient testified that he discussed post-surgery hip infections with an individual on Facebook three or four years before the deposition and that the individual mentioned a warming device. He then searched for surgical warming devices online and was ultimately referred to the law firm which represented him in this action. In August 2022, he first discovered that the Bair Hugger was used during his surgery from his medical records, and he filed this suit in June 2023.

Based on the aforesaid facts, the court concluded that the doctrine of contra non valentem did not make this action timely. The patient could have requested and reviewed his medical records at any time after he developed an infection and underwent the first revision surgery in 2016; the prescription period did not await review of his medical records in 2022. Further, as explained in In re Taxotere (Docetaxel) Prods. Liab. Litig., 995 F.3d 384, 389 (5th Cir. 2021), “prescription runs ‘from the time there is notice enough to call for inquiry about a claim, not from the time when the inquiry reveals facts or evidence sufficient to prove the claim.’ It ‘does not necessarily wait for the pronouncement of a victim’s physician or of an expert.’” More than a year before he brought this action, he underwent five revision surgeries; he communicated with an individual about infections after hip surgeries and learned about warming devices; he researched such devices; he was referred to his attorneys; and his attorneys identified him in a list of unfiled actions. The court explained that “[p]laintiffs are not entitled to wait to sue until they are certain of what and/or who caused their injury.” Accordingly, the suit was untimely. The motion to exclude the man’s expert evidence was denied as moot.

The case is No. 23-cv-1818.

Judge: Ericksen, J.

Attorneys: Gabriel Assaad (McDonald Worley, PC) for Gary G. Pelican. Benjamin W. Hulse (Norton Rose Fulbright US LLP) and Christine R. M. Kain (Faegre Drinker Biddle & Reath LLP) for 3M Co. and Arizant Healthcare, Inc.

Companies: 3M Co.; Arizant Healthcare, Inc.

Cases: CaseDecisions MDeviceNews PLDeviceNews MinnesotaNews