Federal Magistrate Judge Orders Competitor Of 3M Bair Hugger System To Testify, Turn Over Records

Nov 09, 2015, 09:00 ET from 3M

MINNEAPOLIS, Nov. 9, 2015 /PRNewswire/ -- A federal judge has denied a request by Dr. Scott Augustine to withhold documents and avoid answering questions from attorneys for 3M Company, maker of the Bair Hugger patient warming system.  

Augustine, whose company makes a competing warming device, has leveled a series of accusations against 3M's warming system in recent years – accusations that 3M contends are based on junk science and are solely intended to help boost sales of Augustine's own device.

U.S. District Magistrate Judge Franklin L. Noel last week ordered Augustine to turn over documents and video materials sought by 3M attorneys and demanded that the Minnesota inventor appear for deposition. The ruling came in a case involving a patient, Timothy Johnson, who sued 3M last year and claimed that he sustained an infection during knee surgery that was caused by the Bair Hugger system. 3M said there is no evidence that the Bair Hugger system causes infections during surgery. 

In court filings, lawyers for 3M said allegations in the Johnson case, and in others like it, are largely based on Augustine's "unsupported theories that were part of his smear campaign against the Bair Hugger to promote his own competitive device.''

Johnson's claim that the Bair Hugger system caused his surgical site infection "is based entirely on the junk science theories developed and perpetuated by Dr. Augustine and his companies,'' according to 3M's court filings. "The misinformation campaign is driven by ulterior motives and junk science sponsored by Dr. Augustine, and is contradicted by decades of research and clinical experience.''

Court filings note that Augustine is closely aligned with the Houston law firm representing Johnson. In 2009, Augustine hired the firm, Kennedy Hodges LLP, allegedly for "product liability related issues.''  In its arguments to Judge Noel, 3M also noted that Augustine has repeatedly delayed being deposed in a similar case against 3M and the Bair Hugger system in Texas. 

3M's Bair Hugger system, which has been used in more than 200 million surgeries, is used to warm patients before and during surgery to maintain a patient's normal body temperature. Maintaining normal body temperature is clinically proven to help reduce the risk of infections and improve surgical outcomes.

3M acquired the Bair Hugger system as part of its acquisition of Arizant Inc. in August 2010.  Augustine, who invented the Bair Hugger system, resigned as chairman and CEO of Arizant in 2002 after a dispute with other board members. He later pleaded guilty to Medicare fraud and litigated against Arizant.

Augustine created a new company, Augustine Temperature Management, which now sells a competing warming blanket called Hot Dog.  Since creating the product, Augustine "has been engaged in a fear-mongering campaign against the Bair Hugger device in an effort to jump-start the sales of his competing product,'' according to 3M's court filings.

The Hot Dog received attention in December 2014 when a British hospital patient suffered third-degree burns when the warming blanket overheated. Augustine blamed the hospital for the injury.

Bair Hugger is a trademark of 3M.