IN RE: Bair Hugger Forced Air Warming Devices Products Liability Litigation

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CASE 0:15-md-02666-JNE-DTS
Doc. 3349
Filed 02/27/26
Page 1 of 4
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
In re: BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION
This Order Relates to: 25-cv-03538 (Hemphill) 25-cv-03669 (Bright) 25-cv-03670 (Combs) 25-cv-03673 (Flanagan)
MDL No. 15-2666 (JNE/DTS)
AMENDED REPORT AND RECOMMENDATION
BACKGROUND
On July 16, 2025, the Court issued an order adopting a clear process for dismissing cases in which plaintiffs fail to timely serve a Plaintiff Fact Sheet (PFS) under Pretrial Order No. 14. Dkt. No. 2906. Per this Order, Defendants are to circulate a list identifying cases in which plaintiffs have failed to serve a PFS, and if plaintiffs dispute the accuracy of Defendants' list, plaintiffs are to raise the issue at the subsequent status conference. After each status conference, the Court will enter an order to show cause directing the listed plaintiffs to either serve a PFS before the next status conference or appear and explain why their case should not be dismissed for failure to comply with PTO 14.
On December 24, 2025, Defendants circulated a list of cases in which plaintiffs failed to serve a PFS (List 1). At the January 9, 2026 status conference, no plaintiff disputed the accuracy of the list. Therefore, the cases that remained on List 1 not subject to any pending motions to dismiss or recommended dismissals were placed on the January 22, 2026 Order to Show Cause, Dkt. No. 3323, and directed to serve verified PFSs by the February 17, 2026 status conference or appear and show good cause as to why their case should not be dismissed for failure to comply with PTO 14. Several of
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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these plaintiffs served a PFS by the February 17, 2026 deadline; the cases that remain
are listed in the caption to this Report and Recommendation. No plaintiffs argued good
cause at the February 17, 2026 hearing as to why their case should not be dismissed for
failure to comply with PTO 14.
ANALYSIS
I. 	Legal Standard
If a plaintiff fails to prosecute or comply with PTO 14, the Court may dismiss the
case. (PTO 14, Dkt. No. 117 at ¶ 8; see Dkt. Nos. 577, 622, 692, 862, 1028, 1060, 1100,
1167, 1237, 1257, 1298, 1376, 1431, 1564, 1609, 1888 (dismissing more than 50 cases
where plaintiffs failed to serve a PFS and more than 75 cases where plaintiffs failed to
verify a PFS); see also Fed. R. Civ. P. 41(b). Such dismissal may be with prejudice “in
cases of willful disobedience of a court order or where a litigant exhibits a pattern of
intentional delay.” Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000). This
does not require a finding of bad faith, but “merely that the plaintiff acted deliberately as
opposed to accidentally.” First Gen. Res. Co. v. Elton Leather Corp., 958 F.2d 204, 206
(8th Cir. 1992). A “pattern of intentional delay” includes where a plaintiff fails to comply
with a court order despite multiple opportunities for compliance and the Court’s warning
that noncompliance may result in dismissal. Id. As the Court has previously explained,
when afforded multiple opportunities for compliance, “failure to comply with PTO 14 . . .
warrants dismissal with prejudice.” Order 3, Dkt. No. 1888.
As discussed below, PTO 14 builds in multiple opportunities for compliance:
90 days to serve a verified PFS as provided by PTO 14, a listing of cases by Defendants
with missing PFSs, and the Court’s show-cause procedure which permits additional time
to cure.
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CASE 0:15-md-02666-JNE-DTS
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II. Failure to Serve PFSs
The Court finds that the following plaintiffs subject to the Court's Fourth Order to Show Cause failed to serve a PFS before the February 17, 2026 deadline:
Case Number
Title
Date Filed
Due Date
Firm Name
25-cv-03538
Hemphill, Linda L. V. 3M Co. et al.
9/8/2025
12/7/2025
Law Offices of Charles H. Johnson
25-cv-03669
Bright, Howard v. 3M Co. et al.
9/15/2025
12/14/2025 Kaster, Lynch, Farrar & Ball
25-cv-03670
Combs, Michelle v. 3M Co. et al.
9/15/2025
12/14/2025 Kaster, Lynch, Farrar & Ball
25-cv-03673
Flanagan, Marsha v. 3M Co. et al.
9/15/2025
12/14/2025 Kaster, Lynch, Farrar & Ball
The Court recommends that the five cases in the above table be dismissed. This recommendation rests on the same considerations noted in previous recommendations for dismissal for failure to comply with PTO 14. See Dkt No. 2921 at 12-16; Dkt. No. 2951 at 2-3. First, each plaintiff was aware they had 90 days to serve a verified PFS under the rules of PTO 14. Second, each plaintiff was reminded of their failure to serve a PFS through the circulation of List 1. Third, each plaintiff had ample opportunity (before and after the 90-day deadline) to serve a verified PFS, including additional time following entry of the Fourth Order to Show Cause. Fourth, each plaintiff had an opportunity to be heard at the February 17, 2026 hearing to either dispute or explain their noncompliance. Finally, plaintiffs were on notice that "[f]or any case in which the plaintiff fails to serve a verified PFS and fails to demonstrate good cause for non-compliance with PTO 14, the Court will recommend dismissal of the case with prejudice." Dkt. No. 2932 at 21; see also Dkt. No. 3323 at 3.
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RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS THAT: the following
five cases be dismissed with prejudice: 25-cv-03538 (Hemphill); 25-cv-03669 (Bright); 25-
cv-03670 (Combs); 25-cv-03673 (Flanagan).
Dated: February 27, 2026 	__s/ David T. Schultz_____________
DAVID T. SCHULTZ
United States Magistrate Judge
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