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

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CASE 0:15-md-02666-JNE-DTS
Doc. 3322
Filed 01/22/26
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-02537 (Casteel) 25-cv-02540 (Earl) 25-cv-02660 (Richardson) 25-cv-02924 (Bearman)
MDL No. 15-2666 (JNE/DTS)
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 PFS under Pretrial Order No. 14. See 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 November 20, 2025, Defendants circulated a list of cases in which plaintiffs failed to serve a PFS (List 1). After the December 2, 2025 status conference, and after conferring with plaintiff's counsel Gabriel Assaad, Defendants circulated an updated list of cases in which plaintiffs failed to serve a verified PFS. Therefore, 30 cases on List 1 were placed on the December 12, 2025 Order to Show Cause, Dkt. No. 3258, and directed to serve verified PFSs by the January 8, 20261 status conference or appear and
1 The status conference was later moved to January 9, 2026.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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show good cause as to why their case should not be dismissed for failure to comply with
PTO 14. Several of these plaintiffs served a PFS by the January 8, 2026 deadline, and
some were granted a 30-day extension; the four cases that remain are listed in the caption
to this Report and Recommendation. No plaintiffs argued good cause at the January 9,
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 ¶ 8, Dkt. No. 117; see also 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); 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
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with missing PFSs, and the Court's show-cause procedure which permits additional days to cure.
II. Failure to Serve PFSs
The Court finds that the following 4 plaintiffs failed to serve a verified PFS before the Order to Show Cause's January 8, 2026 deadline:
Case Number
Title
Firm Name
25-cv-02537
Casteel, Noel
Kaster, Lynch, Farrar & Ball
25-cv-02540
Earl, Frances
Kaster, Lynch, Farrar & Ball
25-cv-02660
Richardson, Stephanie
Kaster, Lynch, Farrar & Ball
25-cv-02924
Bearman, Lance
Meshbesher & Spence, Ltd.
The Court recommends that the four cases in the above table be dismissed. This recommendation rests on the same considerations discussed in previous reports and recommendations. 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 by their appearance on 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 Order to Show Cause. Fourth, each plaintiff had an opportunity to be heard at the January 9, 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.
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RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS THAT: the following
four cases be dismissed with prejudice: 25-cv-02537 (Casteel); 25-cv-02540 (Earl); 25-
cv-02660 (Richardson); 25-cv-02924 (Bearman).
Dated: January 22, 2026 	__s/ David T. Schultz__________
DAVID T. SCHULTZ
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line limits set for in LR 72.2(c).
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