3M corporate headquarters.

Three plaintiffs attorneys accused in a sanctions motion by 3M of allegedly disclosing sealed materials are fighting back with their own sanctions motion, insisting that the company's lawyers “resorted to fabricating facts.”

Last month, 3M Corp. filed a motion for contempt and sanctions against the plaintiffs lawyers, who are leading more than 5,000 lawsuits alleging its Bair Hugger warming blankets, used in surgeries, increased the risk of infection. The three attorneys, 3M's lawyers wrote, disclosed sealed documents, most recently in a publicly filed motion to compel, submitted for a separate state court case in Texas, according to 3M's motion.

“Contempt and the imposition of sanctions are warranted where, as here, an attorney repeatedly violates court orders governing the confidentiality of documents,” wrote 3M attorney Benjamin Hulse. “MDL counsel have repeatedly expressed their disagreement with this court's sealing orders and have repeatedly shown they have no qualms about violating them when it suits their purpose. Nothing short of a sanction order from this court will curb their misconduct.”

The three plaintiffs attorneys—Genevieve Zimmerman of Meshbesher & Spence in Minneapolis and Houston lawyers Gabriel Assaad of Kennedy Hodges and Kyle Farrar of Farrar & Ball—fired back this month with their own sanctions motion against 3M's lawyers, accusing them of making “willful misrepresentations of fact.”

“Zealous advocacy does not excuse 3M's accusation of misconduct without underlying factual support,” the three plaintiffs lawyers wrote. As a result, “3M and the lawyers who signed the sanctions pleading resorted to fabricating facts.”

A federal magistrate judge in Minnesota heard arguments July 16 but has yet to rule on the sanctions motions.

Hulse, a partner at Blackwell Burke in Minneapolis, did not respond to a request for comment. But 3M spokeswoman Fanna Haile-Selassie said in an email, “3M stands behind its motion for contempt and by the attorneys who speak on 3M's behalf.”

Zimmerman, Assaad and Farrar, as well as Albert Garcia, the plaintiffs lawyer in the Texas case, did not respond to a request for comment.

The sanctions motions are the latest twist in litigation that the U.S. Judicial Panel on Multidistrict Litigation coordinated in 2015 over the Bair Hugger Forced Air Warming system. Last year, a federal jury sided with 3M in the first bellwether trial before U.S. District Judge Joan Ericksen of the District of Minnesota.

According to 3M's sanctions motion, filed June 6, plaintiffs lawyers in the multidistrict litigation disclosed a sealed 2015 opinion by a federal judge in the Southern District of Texas in a Bair Hugger case called Walton v. 3M as part of a motion to compel filed earlier this year in a separate lawsuit in Hiladgo County District Court. They also disclosed sealed documents about a 3M product called “Bair Paws” that addressed why some practitioners do not use the Bair Hugger system, the sanctions motion says.

The motion to compel in Texas, 3M's lawyers wrote, is a “pretext to disclose documents.”

“MDL counsel's motives here are transparent and their rationale disingenuous at best,” Hulse wrote. “Apparently, they will not stop until the court acts.”

In response to the motion to compel, 3M's lawyers have sought a protective order in the Texas case. They also have filed a motion for permanent injunction in the MDL to bar the Texas case from going forward under the All Writs Act and the Relitigation Exception to the Anti-Injunction Act. They noted that the plaintiff in the Texas case, John Petitta, had dismissed the same claims against 3M in 2017 in a separate federal complaint.

Plaintiffs lawyers wrote back that 3M's injunction argument “defies common sense, equity and fairness, and principles of federalism, not to mention the overwhelming weight of binding Supreme Court authority.” The three plaintiffs attorneys targeted in the sanctions motion also denied that they disclosed sealed documents, stating that the information was publicly available.

“3M has no evidence in support of this serious accusation of wrongdoing because it didn't happen,” they wrote in a June 13 response that included affidavits from the three plaintiffs lawyers in the MDL, and Garcia, attesting that they shared no confidential documents. The motion to compel in the Texas case, they wrote, cited “public deposition transcripts” detailing that 3M concealed “excessive payment agreements” with five witnesses in the Walton case—but not the contents of the sealed order itself.

“3M knew plaintiffs' counsel based their briefing on public sources, and it had no good faith basis to claim that plaintiffs' counsel violated any order by citing these public sources,” they wrote. “Yet in its zeal to cast plaintiffs' counsel in a poor light, 3M filed a motion leveling false accusations of misconduct.”

Then, on July 2, they filed their own motion for sanctions against 3M's lawyers, insisting there was not “one iota of evidence” about the Bear Paws disclosures. They also claimed 3M's lawyers altered documents to make it appear they disclosed the 2015 ruling in Walton.

3M, in a July 10 response, said plaintiffs attorneys' Bear Paws disclosure went “beyond the scope of the transcript” and that their claim about altering documents were false.

“Defendants' motion for contempt and sanctions against MDL counsel was well supported by the factual record and by court orders, and necessitated by MDL counsel's repeated, willful efforts to publicly disclose the substance of sealed information,” wrote Jerry Blackwell, founder of Blackwell Burke. “MDL counsel do not and cannot identify any sanctionable conduct by defendants.”