Civil Law

This post comes from the non-Butler Snow side of the blog.

The Bair Hugger MDL has an up and down history. First, we lauded the district court’s Rule 702 rulings that led to summary judgment across the board for the defendant.  But then the Eighth Circuit reversed. The cases came back to the district court and the litigation has hobbled along since. That’s all about the substance of the cases. On procedure, the defendant is now batting two for two. Almost exactly one year ago to the day, we posted about the Bair Hugger MDL dismissal of multiple cases for failing to show any good cause for plaintiffs’ failure to file suggestions of death timely. At that time, we thought the Bair Hugger court sounded a little exasperated with the plaintiffs’ shenanigans. Well, plaintiffs are at again. Only this time, it’s Plaintiffs’ Fact Sheet shenanigans that are getting them in hot water.

The situation in Bair Hugger was not a single slacker who missed a deadline by 24 hours because their internet crashed during a thunderstorm. We’re talking about over 200 plaintiffs, who despite ample notice and time, were anywhere from 2 months to over 6 years overdue. In re Bair Hugger Forced Air Warming Products Liability Litigation, 2025 U.S. Dist. LEXIS 152331, *1, 4 (D. Minn. Jul. 24, 2025). That’s not a delay—that’s ghosting.  

While we know most of our audience is defense counsel, if anyone is reading this and thinks—what’s the big deal, it’s just a fact sheet? Why does that warrant dismissal?  Here’s the answer.  The whole point behind an MDL is streamlining pretrial proceedings, conserving judicial resources, and promoting efficient resolution of mass tort claims. A cornerstone of this process is the Plaintiff Fact Sheet (PFS)—a standardized discovery tool used in lieu of interrogatories that enables defendants to evaluate the merits of each claim, and courts to manage their dockets. In other words, MDLs are a bit like boot camps. They are here to whip thousands of lawsuits into shape, sort the wheat from the chaff, and figure out which claims actually have meat on the bone. Without a completed PFS, defendants are left to guess the basis of a claim, and courts are forced to manage a bloated docket with no ability to assess individual claims. 

Moreover, court orders are not polite suggestions. PFSs are not something to be filled out “at your earliest convenience.” Plaintiffs who ignore those orders, especially after multiple opportunities to comply, are negligent.  At that point, dismissal isn’t harsh. It’s just common sense. Which is the approach the Bair Hugger MDL court took. With limited exceptions, the court granted the motion to dismiss as to any plaintiff who was the subject of the defendant’s motion and who remained delinquent at the time the motion was heard. Id. at *3. First, by the time of the hearing, plaintiffs were on notice that failure to comply carried the risk of dismissal.  Second, the plaintiffs were well aware they were late. The 90-day deadline to serve a PFS had been in place for over eight years. Delinquent plaintiffs received at least two separate notices—they were placed on a list circulated by defendant’s counsel and then again made a subject of the motion. Third, there was no dispute that plaintiffs had ample time to cure their deficiencies (anywhere from 2 to 82 months). Fourth, each plaintiff had an opportunity to be heard. The court directed plaintiffs to respond to the motion and held a hearing. So, if defendant got it wrong for any reason, plaintiffs had the opportunity to correct the record. Id. at *4-5. Yet, “no plaintiff offered an explanation for their failure to comply with [the PFS] 90-day deadline.” Id. at *5-6.

Instead, plaintiffs argued that the motion to dismiss should be denied because the defendant failed to comply with the local rule requiring the parties meet and confer before filing a motion. The defendant relied on provisions in the PFS order that allowed certain status conference procedures to substitute for the meet and confer requirement. As written, the order was somewhat ambiguous as to whether that procedure applied to PFS deficiencies or complete delinquencies, so the court found defendant’s interpretation to be reasonable. But, more importantly, courts are not required to deny motions because the moving party failed to meet and confer. There are times when reaching the merits notwithstanding the failure to meet and confer is “common sense.” The court found this was such a case. In fact, defendants conferred with individual plaintiffs after the motion was filed which resulted in the defendant withdrawing the motion as to more than 50 cases. Those “conversations and withdrawals were consistent with the spirit, if not the letter, of [the local rule].” Id. at *8.

Plaintiffs also tried to make some noise that the defendant should not be allowed to dismiss cases en masse based on an attorney declaration and a spreadsheet. But the court could not fathom what “other evidence” would be needed to demonstrate plaintiff’s failure to serve a PFS.  Id. at *8-9. If plaintiffs found error with the defendant’s spreadsheet, they had the opportunity to speak up and correct it. Therefore, the court dismissed over 200 cases pursuant to Federal Rule 41(b), for failure to comply with a court order. Most of those dismissals were for never serving a PFS, but the same logic and conclusion was applied by the court to dismiss plaintiffs who failed to serve a verified response as the order required. 

In a case that has been around as long as the Bair Hugger MDL, this dismissal is like cleaning out the closet. The ghost plaintiffs—the ones who don’t fill out the PFS—are like the mystery single shoe wedged into the darkest corner of the closet. No one knows where it came from, and it definitely isn’t pulling its weight. When a plaintiff still fails to act—despite the generous accommodation we see here—it becomes apparent that the claim is either abandoned, frivolous, or asserted in bad faith. Making it perfectly reasonable for the court to show them the door—with a polite but firm, “You’re dismissed.”

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